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FightBack Forums _ Council Tickets & Clamping and Decriminalised Notices _ 2 PCNs for parking on the pavement in SW15 / Putney

Posted by: obwan1212 Thu, 12 Jul 2018 - 08:58
Post #1398135

Hello all and thank you in advance for any help and sorry – it’s a long one!

Tildesley Road on the Ashburton Estate in SW15 is almost entirely half and half parking with marked bays demanding that you park half on the pavement and half on the street. On 10th and 11th May I was parked half and half at the very end of the road which I can now see looking closely appears not to be a half and half parked bay, just a normal parking spot, although I and many on the estate park there regularly with no PCN. I received two PCNs just inside 24 hours of each other. I was away that weekend so didn’t see the tickets until I got back on the Sunday. The whole of the estate is free parking on the streets.

I made online representations to http://www.wandsworth.gov.uk/pconline for both PCNs on 15th May, and then no response at all other than an email auto confirmation of my representation - this one and a second very similar: http://tinypic.com/r/wuf57t/9

I then received one NTO dated 29 June for the later issued ticket. The first issued PCN number is now not showing up as recognised on the www.wandsworth.gov.uk/pconline system, so it looks like this one may have been cancelled, but no communication at all.
http://tinypic.com/r/2euicyv/9
http://tinypic.com/r/2yy1maw/9

https://www.google.com/maps/@51.4525157,-0.2305174,3a,75y,340.7h,66.67t/data=!3m6!1e1!3m4!1sJbaKr6R4vb58eQtSOojjOw!2e0!7i13312!8i6656
https://www.google.com/maps/@51.4523623,-0.2304817,3a,75y,338.55h,74.99t/data=!3m6!1e1!3m4!1sUN8MYOMXCmQLBSYxRothKg!2e0!7i13312!8i6656

http://tinypic.com/r/olkdf/9
http://tinypic.com/r/30kx7k2/9
http://tinypic.com/r/a3p26r/9
http://tinypic.com/r/29ggcr5/9
http://tinypic.com/r/2gvq6h0/9
http://tinypic.com/r/4tu3c9/9

Since receiving the PCNs I’ve kept more of an eye on the parking space, and people are still able to park there all day without a PCN. I’ve taken quite a few photos showing other cars parked here or on the adjacent street and none seem to get tickets. I was wondering as there are no other posts on pepipoo for here, that is might not be a regular PCN offence, maybe. I can post these photos too with the reg blacked out if that might help.

There is a .pdf document published by Wandsworth: http://www.wandsworth.gov.uk/downloads/download/227/parking_in_wandsworth

On page 5, under “Areas of parking enforcement in which discretion (leeway) is applied” is a bullet point “in the few uncontrolled roads in the borough (i.e. those where a CPZ has not been introduced) vehicles parked partly on the footway in narrow roads are not ticketed providing that they leave sufficient space for a wheelchair of double buggy to pass unhindered.” In the same document on page 2 it says CEOs “cannot ignore vehicles parked in contravention of the regulations” – which they seem to be doing for all the other cars parked on Tildesley and other streets close by in the last bay that ‘isn’t’ half and half.

On my photos, you can see that the parking warden has photographed using a tape measure to measure the width of the pavement that I’d left. My PCN is a Contravention code 62: Parked with one of more wheels on or over a footpath or any part of a road other than a carriageway and doesn’t mention anything further with regards to space. I’m guessing the tape measure may be to show I had not left sufficient space possibly, but this does seem to be an arbitrary measure as to what is ‘sufficient’ and not mentioned elsewhere in the pdf above, and you also can’t actually see the measurement in the photo, just a bit of tape measure, so who knows what width it is?

You can also see from the cars parked behind my car on the same street that the rest of this street is half and half parking. Also as the parking spot is close to a junction, you would have thought it would make far more sense for it to be a half and half, rather than block a junction. Even when parking half and half on this street I get scraped regularly.

Also, on Wandsworth’s website says that, “If an informal representation against a PCN is received within the 14-day discount period, the discount will be re-offered if we decide to uphold the charge”, but I’ve had no response nor offer of the original discount on this link: http://www.wandsworth.gov.uk/info/200461/parking_tickets_and_fines/308/appealing_a_penalty_charge_notice

Any help or suggestions would be much appreciated.

Should I make a formal representation and should I complain that I’ve not received a response and an opportunity to pay a reduced fine, and to who / how?

Thanks, all, Obwan

Posted by: DastardlyDick Thu, 12 Jul 2018 - 10:17
Post #1398170

"Footway Parking" has been banned in London since 1974, and has no relation to CPZs or yellow lines etc.

The Council has to dis apply the blanket ban by a Resolution. what you need to do is get onto the Legal Dept. at Wandsworth Council and ask for a copy of the Resolution that does this for the road you were parked in.
Do not use an FoI request, it will take longer than 14 days. If there is no resolution dis appling, then you could try "legitimate expectation" as a defence which is 'I've been parking here for xx years and never been ticketed before' but this will only work once.

Posted by: obwan1212 Thu, 12 Jul 2018 - 11:13
Post #1398199

Thank you DD.

I don't quite understand, if I get the Resolution, will it say that you are able to park half and half on the whole of the road I was parked on, hence they can't ticket me for parking where I did on that same road?

Without and FoI are Wandsworth Legal Department obliged to give me a copy?

Posted by: John U.K. Thu, 12 Jul 2018 - 12:08
Post #1398227

QUOTE
I don't quite understand, if I get the Resolution, will it say that you are able to park half and half on the whole of the road I was parked on, hence they can't ticket me for parking where I did on that same road?


The Resolution will lay out the details of the extent to which the ban on pavement parking has been dis-applied.

Quite often it simply says, for example, XYZ Street (North side) with no further restrictions. But you will not know until you see the Resolution.


Posted by: hcandersen Thu, 12 Jul 2018 - 13:28
Post #1398287

Don’t you ask for the resolution, that’s their job.

You say your second challenge was similar to the first. Pl post it because it’s the only one of interest.

2 obvious grounds based on your account:

1. Contravention did not occur
I was parked at the location with two wheels on the footway, exactly colinear with the numerous cars which your photos show were similarly parked in the background with two wheels on the footway. It is clear from your evidence that parking in this way is ‘permitted’ in this part of the road and therefore the contravention did not occur. I would further point out that your photos do not show at any point between the back of my car and the line of cars behind any of the signs at items 12-17 of the Part 2 sign table in Schedule 7 to the Traffic etc. Signs Regs 2016. Putting aside the possibility that a sign should have been in place but was missing on the day, it therefore follows that only one of the following scenarios is possible:

1. Both my location and the cars behind sit within a larger area where the council have disapplied the GLC 1974 Act prohibition, the limits of which begin/end some way behind/ahead and out of sight of my car, or
2. The council have not disapplied the footway parking prohbition but are acting ultra vires by selectively and without any signs on the ground choosing to permit footway parking in some areas and not others. For these purposes ‘choosing to permit’ is the same as not enforcing, which by virtue of their status as an enforcement authority is their duty.

If the authority reject these representations then they must provide valid reasons based in law. For example, if the authority were to claim that them not enforcing the prohibition is not based on it being disapplied but rather a policy-based blanket application of discretion then, in addition to giving the legal basis for such a policy, they would have to explain how, in the absence of explanatory signs (not traffic signs because in this case these may only be erected to show the effect of a resolution) this does not mislead motorists.

Penalty exceeded .... the circumstances of the case..
Subject to seeing your challenge and confirmation that it was properly formatted and addressed and included your address.

You have until 30 July to submit reps.

Posted by: obwan1212 Thu, 12 Jul 2018 - 14:25
Post #1398314

Thank you both John and hcandersen, much appreciated.

QUOTE
"You say your second challenge was similar to the first. Pl post it because it’s the only one of interest."


Apologies, what I meant was that I made one single representation for each PCN on their online portal - so two in total. The two representations were very similar in content as shown below in the two automated email responses I received after posting them:

==============================================================================

Your challenge of the Penalty Charge Notice has been made with the following information:
Registered Keeper:
Penalty Charge Notice number (PCN): WA7949XXXX
Email Address:
Grounds of Appeal: (DNO) The contravention did not occur
Summary of Reasons for Challenge: Hello there. I've received two PCNs - WA7949XXXX and WA7947XXXX over the weekend just gone on TILDESLEY ROAD, SW15 on Friday 11th and Saturday 12th May. You can see in the third picture that behind my car that the whole of the rest of the street has cars parked on the pavement, and in line with my car behind it. Where I am parked is actually closer to the T junction, so I would have thought that if anything I’m being a safer in parking on the pavement. I’m extremely sorry for this, and definitely wouldn’t happen again, but it does seem to be unfair to me and not the rest of those parking on this road.
I was hoping that you would be able to use your discretion to cancel both of the tickets, for the reasons that I am parking safely and only in line with the rest of those parking in the same width of street, and secondly that the 2nd PCN was for exactly the same offence, and less than 24 hours later (08:29 then 08:12 the following morning). I had not moved the car in the meantime as I was at a wedding in Yorkshire, and this is obvious from the second set of photos that the car has not moved.

All correspondence received about a Penalty Charge Notice (PCN) is dealt with in chronological order.

Depending on the stage of the PCN, your enquiry will be now be placed on hold and passed to the appropriate parking team and an officer will reply to you as soon as possible. We aim to respond usually within 14-21 days of receipt for enquiries received in response to a Penalty Charge Notice (PCN), which has been served to your vehicle windscreen.

Please be advised that if you have not received a reply from the Council within this time we have upto 56 days to reply to a formal challenge.

For details of the parking appeals process please refer to our www.wandsworth.gov.uk/parking website.

You may additionally find further useful information on the Parking and Traffic Appeal Service website at www.parkingandtrafficappeals.gov.uk/

Please do not reply to this acknowledgement. If you have any further questions please call our Parking Helpline on (020) 8871 8871 Mon-Fri 9am to 5pm.

If your enquiry is received within the discounted period that is stated on the PCN, then please be assured that we will re-offer you the opportunity to pay the Notice at the 50% reduced rate in the event that the charge is upheld.

==============================================================================

Your challenge of the Penalty Charge Notice has been made with the following information:
Registered Keeper:
Penalty Charge Notice number (PCN): WA7949XXXX
Email Address:
Grounds of Appeal: (OTHER) Other
Summary of Reasons for Challenge: Hello there. I've received two PCNs - WA7949XXXX and WA7949XXXX over the weekend just gone on TILDESLEY ROAD, SW15 on Friday 11th and Saturday 12th May (I've challenged on both as wan't sure what to do). You can see in the first picture that behind my car that the whole of the rest of the street has cars parked on the pavement, and in line with my car behind it. Where I am parked is actually closer to the T junction, so I would have thought that if anything I’m being a safer in parking on the pavement. I’m extremely sorry for this, and definitely wouldn’t happen again, but it does seem to be unfair to me and not the rest of those parking on this road.
I was hoping that you would be able to use your discretion to cancel both of the tickets, for the reasons that I am parking safely and only in line with the rest of those parking in the same width of street, and secondly that the 2nd PCN was for exactly the same offence, and less than 24 hours later. I had not moved the car in the meantime as I was at a wedding in Yorkshire, and this is obvious from the second set of photos that the car has not moved.

All correspondence received about a Penalty Charge Notice (PCN) is dealt with in chronological order.

Depending on the stage of the PCN, your enquiry will be now be placed on hold and passed to the appropriate parking team and an officer will reply to you as soon as possible. We aim to respond usually within 14-21 days of receipt for enquiries received in response to a Penalty Charge Notice (PCN), which has been served to your vehicle windscreen.

Please be advised that if you have not received a reply from the Council within this time we have upto 56 days to reply to a formal challenge.

For details of the parking appeals process please refer to our www.wandsworth.gov.uk/parking website.

You may additionally find further useful information on the Parking and Traffic Appeal Service website at www.parkingandtrafficappeals.gov.uk/

Please do not reply to this acknowledgement. If you have any further questions please call our Parking Helpline on (020) 8871 8871 Mon-Fri 9am to 5pm.

If your enquiry is received within the discounted period that is stated on the PCN, then please be assured that we will re-offer you the opportunity to pay the Notice at the 50% reduced rate in the event that the charge is upheld.

Posted by: cp8759 Thu, 12 Jul 2018 - 15:14
Post #1398333

I would take a slightly different approach. He's what I'd send:
----------------------
Dear Sir or Madam,

The council has installed parking bays which are partially on the footpath along much of the length of Tildesley Road, it can therefore be inferred that the London wide ban on footway parking imposed by section 15(1) of the Greater London Council (General Powers) Act 1974 has been disapplied at this location . It is reasonable to assume that the council must have made a resolution under section 15(4) of the Greater London Council (General Powers) Act 1974 to disapply the footway parking ban. Absent evidence to the contrary it has to be assumed that when the council introduced these designated parking places which are partially on the footpath, it discharged its duties under regulation 18 of The Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996, which would include the installation of signs under diagram 667 or 667.1 of The Traffic Signs Regulations and General Directions 2016 to inform motorists that they may park partially on the footpath. In this regard it is regrettable that those signs have since been vandalised, stolen or maybe erroneously removed by a contractor.

Of course it may well be that the relevant resolution only disapplies the footway parking ban in the locations identified in the parking bays, it may also be that the correct variation of diagram 667.1 was used to convey to motorists that footway parking is permitted only in marked bays, but as stated above, no such signs remain on Tildesley Road. In the absence of the relevant variation of diagram 667.1 informing motorists that parking is permitted in marked bays only, there is nothing that conveys to motorists that footway parking is restricted in this way. Therefore the alleged contravention did not occur.

Posted by: hcandersen Thu, 12 Jul 2018 - 16:18
Post #1398371

??

They are not parking places which are defined by reference to specified road markings in the regs. What we have is paint. Consequently, no traffic order exists and therefore no role for LATOR.

The requirement regarding signs (which IMO also includes road markings as per RTRA) comes from 15(5) whose wording is matched by LATOR (no point reinventing the wheel, especially if this has been the subject of case law):

https://www.legislation.gov.uk/ukla/1974/24/section/15

Posted by: cp8759 Thu, 12 Jul 2018 - 16:51
Post #1398385

QUOTE (hcandersen @ Thu, 12 Jul 2018 - 17:18) *
??

They are not parking places which are defined by reference to specified road markings in the regs. What we have is paint.

I was trying to cover all scenarios, we often see councils respond to requests for resolutions by providing RTRA orders instead so I wanted to pre-empt that. It may be that the council made RTRA designated parking places, maybe it passed a GLC(GP)A resolution, maybe it both, maybe it did neither, we have no idea. The objective here is to elicit a response where they either admit there is no order and/or no resolution (In which case they are bound to lose due to ambiguous / misleading signage), they ignore the representations (and lose on both ambiguous signage and failure to consider), or accept the white paint has no legal backing. My gut feeling is they will assert there is no need to provide anything as the car was parked outside of a bay on the footpath, and the footpath parking ban applies London wide. There's a good chance they'll fail to produce the resolution (if it exists) but even if they do, they'll still lose.

Posted by: hcandersen Thu, 12 Jul 2018 - 21:33
Post #1398482

We have the same objective.

I would not mention the white-lined area, I certainly would not go near referring to/even acknowledging that it might be considered to be a parking place. To us this area is of no significance, but to them it might be the basis of their argument. But why introduce it if it has no part to play in our contention? To me it’s akin to acknowledging it’s there but differing as to its purpose. Let them do it.

But I’m happy to go with the flow. Whatever the OP does they must demand that the authority produce a legal basis for any rejection and specify what this must contain.

Posted by: obwan1212 Fri, 13 Jul 2018 - 13:28
Post #1398640

Thank you both very much, hcandersen and cp8759.

I think I understand hcandersen's advice for the representation, and should I write what you suggest down to point 2, ending in "is their duty"?

And to end my representation, do I simply request that if Wandsworth do reject my representations that they must provide me with valid reasons based in law?

QUOTE
Whatever the OP does they must demand that the authority produce a legal basis for any rejection and specify what this must contain.


Finally, I'm not sure what this part meant, please would you explain:

QUOTE
Penalty exceeded .... the circumstances of the case..


Thank you both again, in advance.

Posted by: hcandersen Fri, 13 Jul 2018 - 13:51
Post #1398656

If the authority reject these representations then they must provide valid reasons based in law. For example, if the authority were to claim that them not enforcing the prohibition is not based on it being disapplied but rather a policy-based blanket application of discretion then, in addition to giving the legal basis for such a policy, they would have to explain how, in the absence of explanatory signs (not traffic signs because in this case these may only be erected to show the effect of a resolution) this does not mislead motorists and how a motorist is supposed to sort the metaphorical wheat from the chaff given that they are neither blessed with the gift of clairvoyance nor possess crystal balls.

Penalty exceeded......l
I submitted a corrctly formatted and compiled challenge within the 14-day period on *** in response to which I received the following:

...their response

I did not receive a response either accepting or rejecting my challenge.

By virtue of the council’s obligation to hold and reoffer the discount (lines 1 and 2 of para. 2 of the following refer - http://www.wandsworth.gov.uk/info/200461/parking_tickets_and_fines/308/challenging_a_penalty_charge_notice

the demand for the full penalty in the NTO is unlawful and therefore exceeds the amount applicable i.e. until the expiry of any extended discount offered in a reply to my challenge, the applicable penalty remains at the discounted charge.

Posted by: obwan1212 Wed, 25 Jul 2018 - 14:16
Post #1402286

Thank you both again, and sorry for the delay. So would you suggest I just go with Penalty Exceeded in the first instance?

Posted by: obwan1212 Fri, 27 Jul 2018 - 13:38
Post #1402974

Hi both - I've sent two representations online. The first as Penalty Exceeded, and the second as Contravention did not occur as per hcandersen's post of Thu, 12 Jul 2018 - 14:28. I have also requested that if they reject them, that they would need to give valid legal reasons for doing so. Thanks all, and fingers crossed.

Posted by: obwan1212 Fri, 7 Sep 2018 - 09:52
Post #1414539

Hi all,

Unfortunately my representations have been rejected. Any suggestions for what next would be much appreciated, and huge thanks in advance for any help.

Attached is the Notice of Rejection Letter, and please find below the email back from Wandsworth showing the two representations that I made online. They also enclosed the London Tribunals 'Your right to appeal against a penalty charge notice' document. I can upload this but it exceeds my upload currently, and it is I think the standard London Tribunals document. Please let me know if this is needed.

 Notice_of_Rejection_redacted.pdf ( 316.59K ) : 122


Email reply acknowledging my online representations:

Your challenge of the Penalty Charge Notice has been made with the following information:
Registered Keeper: XXXXX XXXXX
Penalty Charge Notice number (PCN): WA794XXXXX
Email Address: XXXXX XXXXX
Grounds of Appeal: (DNO) The contravention did not occur
Summary of Reasons for Challenge: Dear Sir / Madam, if you reject these representations then you must provide valid reasons based in law.

Representation 1:
Firstly, I challenge this NTO due to the ground of “Penalty exceeded”:

I submitted a correctly formatted and compiled challenge within the 14-day period on 15th May in response to which I received the following automated email reply. I then did not receive a response either accepting or rejecting my challenge.
By virtue of the council’s obligation to hold and re-offer the discount (lines 1 and 2 of para. 2 of the following refer - http://www.wandsworth.gov.uk/info/200461/p...y_charge_notice), the demand for the full penalty in the NTO is unlawful and therefore exceeds the amount applicable i.e. until the expiry of any extended discount offered in a reply to my challenge, the applicable penalty remains at the discounted charge. Hence the demand for the full penalty in the NTO is unlawful and therefore exceeds the amount applicable – penalty exceeded.

[Original] Automated email reply:
Your challenge of the Penalty Charge Notice has been made with the following information:
Registered Keeper:
Penalty Charge Notice number (PCN): WA794 XXXXX
Email Address: XXXXX XXXXX
Grounds of Appeal: (DNO) The contravention did not occur
Summary of Reasons for Challenge: Hello there. I've received two PCNs - WA794 XXXXX and WA794XXXXX over the weekend just gone on TILDESLEY ROAD, SW15 on Friday 11th and Saturday 12th May. You can see in the third picture that behind my car that the whole of the rest of the street has cars parked on the pavement, and in line with my car behind it. Where I am parked is actually closer to the T junction, so I would have thought that if anything I’m being a safer in parking on the pavement. I’m extremely sorry for this, and definitely wouldn’t happen again, but it does seem to be unfair to me and not the rest of those parking on this road.
I was hoping that you would be able to use your discretion to cancel both of the tickets, for the reasons that I am parking safely and only in line with the rest of those parking in the same width of street, and secondly that the 2nd PCN was for exactly the same offence, and less than 24 hours later (08:29 then 08:12 the following morning). I had not moved the car in the meantime as I was at a wedding in Yorkshire, and this is obvious from the second set of photos that the car has not moved.

All correspondence received about a Penalty Charge Notice (PCN) is dealt with in chronological order.

Depending on the stage of the PCN, your enquiry will be now be placed on hold and passed to the appropriate parking team and an officer will reply to you as soon as possible. We aim to respond usually within 14-21 days of receipt for enquiries received in response to a Penalty Charge Notice (PCN), which has been served to your vehicle windscreen.

Please be advised that if you have not received a reply from the Council within this time we have upto 56 days to reply to a formal challenge.

For details of the parking appeals process please refer to our www.wandsworth.gov.uk/parking website.

You may additionally find further useful information on the Parking and Traffic Appeal Service website at www.parkingandtrafficappeals.gov.uk/

Please do not reply to this acknowledgement. If you have any further questions please call our Parking Helpline on (020) 8871 8871 Mon-Fri 9am to 5pm.

If your enquiry is received within the discounted period that is stated on the PCN, then please be assured that we will re-offer you the opportunity to pay the Notice at the 50% reduced rate in the event that the charge is upheld.

Representation 2:
1. Contravention did not occur
I was parked at the location with two wheels on the footway, exactly colinear with the numerous cars which your photos show were similarly parked in the background with two wheels on the footway. It is clear from your evidence that parking in this way is ‘permitted’ in this part of the road and therefore the contravention did not occur.
I would further point out that your photos do not show at any point between the back of my car and the line of cars behind any of the signs at items 12-17 of the Part 2 sign table in Schedule 7 to the Traffic etc. Signs Regs 2016. Putting aside the possibility that a sign should have been in place but was missing on the day, it therefore follows that only one of the following scenarios is possible:

1. Both my location and the cars behind sit within a larger area where the council have disapplied the GLC 1974 Act prohibition, the limits of which begin/end some way behind/ahead and out of sight of my car, or
2. The council have not disapplied the footway parking prohibition but are acting ultra vires by selectively and without any signs on the ground choosing to permit footway parking in some areas and not others. For these purposes ‘choosing to permit’ is the same as not enforcing, which by virtue of their status as an enforcement authority is their duty.

If you reject these representations then you must provide valid reasons based in law. Many thanks.


All correspondence received about a Penalty Charge Notice (PCN) is dealt with in chronological order.

Depending on the stage of the PCN, your enquiry will be now be placed on hold and passed to the appropriate parking team and an officer will reply to you as soon as possible. We aim to respond usually within 14-21 days of receipt for enquiries received in response to a Penalty Charge Notice (PCN), which has been served to your vehicle windscreen.

Please be advised that if you have not received a reply from the Council within this time we have upto 56 days to reply to a formal challenge.

For details of the parking appeals process please refer to our www.wandsworth.gov.uk/parking website.

You may additionally find further useful information on the Parking and Traffic Appeal Service website at www.parkingandtrafficappeals.gov.uk/

Please do not reply to this acknowledgement. If you have any further questions please call our Parking Helpline on (020) 8871 8871 Mon-Fri 9am to 5pm.

If your enquiry is received within the discounted period that is stated on the PCN, then please be assured that we will re-offer you the opportunity to pay the Notice at the 50% reduced rate in the event that the charge is upheld.
IMPORTANT:Confidentiality: This email and its attachments are intended for the above named only and may be confidential. If they have come to you in error you must take no action based on them, nor must you copy or show them to anyone. Please reply to this email and highlight the error. Please visit the Council's website at: www.wandsworth.gov.uk
IMPORTANT:
This email and any of its attachments are intended solely for the use of the individual or entity to whom they are addressed. If you have received this message in error you must not print, copy, use or disclose the contents to anyone. Please also delete it from your system and inform the sender of the error immediately. Emails sent and received by Richmond and Wandsworth Councils are monitored and may be subsequently disclosed to authorised third parties, in accordance with relevant legislation.


Posted by: obwan1212 Fri, 7 Sep 2018 - 10:41
Post #1414558

London Tribunals - Your Right to Appeal Document FYI too:  London_Tribunals___Your_Right_to_Appeal_Document_small_Redacted.pdf ( 403.97K ) : 102

Posted by: hcandersen Fri, 7 Sep 2018 - 13:56
Post #1414609

I am sick to death with these arrogant, ignorant, inflexible bullies.

Nail the b******s.


Register your appeal:
Contravention did not occur, penalty exceeded etc..... and procedural impropriety.

Contravention did not occur
I will adduce evidence that my car park was parked on the footway and co-located with others which the authority acknowledge were permitted while apparently mine was not.
I will adduce futher evidence that the authority are acting ultra vires and without the benefit of the prescribed resolution under the GLC Act by ‘allowing’ cars to park on the footway without sanction provided they allow 1.2 metres of free space, this figure - which has no legal basis - being the product of collective received wisdom, anecdote and hearsay within the council.
I will produce evidence that either no resolution exists or if it does the authority refuse its disclosure.
I will produce evidence that none of the prescribed traffic signs - which would convey the effect of a resolution - are present at the location.

Penalty exceeded....
I will produce evidence that service of the NTO (a demand for the full penalty) was unlawful, the council having by its own written undertaking bound itself to re-offer the discounted penalty in the event of an unsuccessful challenge submitted no later than 23 May - my challenge in this case having been submitted and acknowledged by the council on 15 May.

Procedural Impropriety
I will produce evidence that the above points (except that related to the penalty which arose only in formal representations) were raised at both the informal and formal stages and that the authority failed to give them proper, or in some cases any, consideration.

Some ideas for starters.

See what others think, including whether you should submit a combined appeal for both PCNs.

Wait a minute, it’s stopped raining, guys are singing, guys are sailing, playing petanque, gee that’s better......

I’m off for a swim!

Posted by: cp8759 Sat, 8 Sep 2018 - 20:06
Post #1414926

As hcandersen says, register an appeal on the tribunal website, at this point just write "ground of appeal to follow" and the tribunal will write to you with a deadline. Once you know the deadline, let us know and we will draft your appeal. For future reference, you can upload documents to imgur.com and just post a link.

Posted by: obwan1212 Mon, 10 Sep 2018 - 08:55
Post #1415230

Thank you, both.

Posted by: Mad Mick V Mon, 10 Sep 2018 - 10:54
Post #1415262

In general terms this one might help:-

2160383659

The Appellant attended in person. She was accompanied by her witness Miss Monica Whittick who was the driver of the vehicle at the material time.

The vehicle was parked outside no. 59 Langdale Avenue which is the address of the Appellant's parents. There are marked pavement bays at Langdale Avenue. The Appellant's vehicle was not in a bay.

The Authority's case is that where there are bay markings, vehicles must park fully within a bay. I am not sure that this is correct. In any event, the allegation is not that the Appellant' vehicle was not parked fully within a marked bay. It is that the vehicle was on the pavement. What I think that the Authority is seeking to say is that because the Appellant's vehicle was on the pavement, it should have been within a pavement bay.

There is no rule that says that anybody parking on the pavement must parked within a marked bay. An Authority can decide to use pairs of blue signs to indicate where pavement parking is allowed. It can determine that this is also subject to vehicles being parked fully within marked bays. If this is the case, the blue signs must say so. The fact that pavement bays are present does not mean that vehicles must be within the bay.

The Authority has not provided any evidence of signage beyond the bay markings. The Appellant has produced evidence, and this is supported by Streetview, that there are blue pavement parking signs covering almost the full length of Langdale Avenue. The Appellant's vehicle was in the permitted area. It was not in a bay but the sign did not stipulate that vehicles must park in a bay.

The signage is not sufficiently clear. I allow the appeal.
-----------------------------------------------------------------

Mick

Posted by: obwan1212 Tue, 11 Sep 2018 - 10:45
Post #1415598

Thank you.

Posted by: obwan1212 Tue, 11 Sep 2018 - 10:57
Post #1415601

QUOTE (cp8759 @ Sat, 8 Sep 2018 - 21:06) *
As hcandersen says, register an appeal on the tribunal website, at this point just write "ground of appeal to follow" and the tribunal will write to you with a deadline. Once you know the deadline, let us know and we will draft your appeal. For future reference, you can upload documents to imgur.com and just post a link.


Appeal lodged, and I will let you know when I have a date. Thank you, both, again.

Posted by: obwan1212 Wed, 19 Sep 2018 - 09:25
Post #1417960

Dear hcandersen, cp8759 and all,

I registered for a postal appeal, hopefully that is OK. The case will come into the list for decision on 10th October 2018 as per the document below:

 Schedule_Postal_14_upload.pdf ( 50.44K ) : 110


If the offer to help draft the appeal is still on, that would be great. Thank you all in advance.

obwan

Posted by: cp8759 Tue, 2 Oct 2018 - 18:58
Post #1421609

Grounds of appeal: The Alleged contravention did not occur.

It has long been established that where, by virtue of section 15(4) of the Greater London Council (General Powers) Act 1974, the highways authority chooses to dis-apply the London-wide footway parking ban, it can limit the scope of the exemption to marked bays. However where this is the intention of the authority, it is necessary for the relevant sign found at diagram 667.1 of the Traffic Signs Regulations and General Directions 2016, with the appropriate "in marked bays" plate. In the absence of such a sign, footway parking within the exempt area is not restricted to marked bays.

While previous cases are not binding they can be persuasive and I submit the following for the tribunal's attention:

James Heptonstall v Royal Borough of Kingston Upon Thames (case reference 2180223994):

"I do not think that there is any dispute that the Appellant's vehicle was partially on the pavement. Pavement parking is allowed at the location and there are marked pavement bays. The Authority's case is that the vehicle was just outside the markings.
My first observation is that is the Authority intends that no vehicle should park on the pavement beyond the bay markings, it should use the appropriate signage i.e. a blue pavement parking sign with a blue panel stating except in signed bay.
...
I am not satisfied that the contravention occurred. I allow the appeal.
"

Lorna Jennifer Whittick v London Borough of Merton (case reference 2160383659):

"The Appellant attended in person. She was accompanied by her witness Miss Monica Whittick who was the driver of the vehicle at the material time.

The vehicle was parked outside no. 59 Langdale Avenue which is the address of the Appellant's parents. There are marked pavement bays at Langdale Avenue. The Appellant's vehicle was not in a bay.

The Authority's case is that where there are bay markings, vehicles must park fully within a bay. I am not sure that this is correct. In any event, the allegation is not that the Appellant' vehicle was not parked fully within a marked bay. It is that the vehicle was on the pavement. What I think that the Authority is seeking to say is that because the Appellant's vehicle was on the pavement, it should have been within a pavement bay.

There is no rule that says that anybody parking on the pavement must parked within a marked bay. An Authority can decide to use pairs of blue signs to indicate where pavement parking is allowed. It can determine that this is also subject to vehicles being parked fully within marked bays. If this is the case, the blue signs must say so. The fact that pavement bays are present does not mean that vehicles must be within the bay.

The Authority has not provided any evidence of signage beyond the bay markings. The Appellant has produced evidence, and this is supported by Streetview, that there are blue pavement parking signs covering almost the full length of Langdale Avenue. The Appellant's vehicle was in the permitted area. It was not in a bay but the sign did not stipulate that vehicles must park in a bay.

The signage is not sufficiently clear. I allow the appeal.
"

It should be added that, even if the relevant signs were present, these would only be enforceable if the resolution made by the council under section 15(4) of the 1974 Act actually restricted footway parking to the marked bays. To date the council has failed to provide a resolution, in fact the Notice of Rejection appears to completely ignore the fact that at least part of Tildesley Road is exempt from the footway parking ban. The council has also not seen fit to produce a copy of the resolution, which would allow the appellant and the tribunal to determine with certainty the extent of the exemption, I aver that without the resolution it cannot be determined that the vehicle was parked in contravention. I refer the tribunal to Daniel Gentry v London Borough of Redbridge (case reference 2160356237):

"Mr Gentry ...does not dispute that his car was parked with two wheels on the footway in Fairway Gardens not far from its junction with Loxford Lane when this Penalty Charge Notice (PCN) was issued to it. He does not now dispute either that there was a sign on a lamp post in front of his car indicating that footway parking was permitted beyond that point. However he has challenged the Authority’s power to issue a PCN in these circumstances, on the basis of information which he saw on plans published on their own website.
Mr Gentry has repeatedly asked the Authority to produce copies of the resolution(s) which he argues were required under Section 15(4) of the Greater London Council (General Powers) Act 1974 (as amended) to authorise the exemption (and more particularly the extent of such exemptions at this location) from the London-wide ban on footway parking. Having first informed him that no such resolutions were required, and that they were entitled to simply rely on the signs, the Authority asserted in their Notice of Rejection that they had indeed “obtained the relevant resolutions to exempt roads from the Great London Councils footway ban"". They have not, however, seen fit to produce any such resolutions for the appeal.
...
Without that evidence, which Mr Gentry has clearly and repeatedly requested, I cannot be satisfied that the point in Fairway Gardens where he parked was not in fact, despite the positioning of the signs, still not subject to a footway parking exemption. Consequently I cannot be satisfied that the contravention alleged occurred.
I must therefore allow this appeal.
"

In this instance there were no signs indicating that the position of the appellant's vehicle fell outside of the area exempt from the footway parking exemption that operates on Tildesley Road, but even if such signs had been present, the tribunal cannot be satisfied that the vehicle was in contravention if the resolution is not produced at the appeal, as the tribunal has no other way of determining the exact extent of the footway parking exemption on this road.

Posted by: obwan1212 Wed, 3 Oct 2018 - 08:00
Post #1421695

Dear cp8759 - huge thanks to you for your post yesterday, and to others for your effort with this so far.

In hcandersen's post quoted below, he also mentions both Procedural Impropriety and Penalty Exceeded, should I include these as well to give two further grounds of appeal?

For the Contravention did not occur (below), he also mentions the 1.2m of free [clear] space that is specifically raised in the Notice of Rejection by Wandsworth (link earlier in this post). Should I also mention this , firstly that this 1.2m appears to have no legal basis, be an arbitrary figure, and also Wandsworth mention that their photos show that "less than the aforementioned space remained", but the photos provided (links earlier in this post) don't actually show any measurement in any detail as the resolution is way too low, they simply show a blurred yellow tape measure.

Streetview also show that there are none streetsigns present, which I will add a link to.

Many thanks in advance,

Obwan2012

From hcandersen:

QUOTE
Contravention did not occur
I will adduce evidence that my car park was parked on the footway and co-located with others which the authority acknowledge were permitted while apparently mine was not.
I will adduce futher evidence that the authority are acting ultra vires and without the benefit of the prescribed resolution under the GLC Act by ‘allowing’ cars to park on the footway without sanction provided they allow 1.2 metres of free space, this figure - which has no legal basis - being the product of collective received wisdom, anecdote and hearsay within the council.
I will produce evidence that either no resolution exists or if it does the authority refuse its disclosure.
I will produce evidence that none of the prescribed traffic signs - which would convey the effect of a resolution - are present at the location.

Penalty exceeded....
I will produce evidence that service of the NTO (a demand for the full penalty) was unlawful, the council having by its own written undertaking bound itself to re-offer the discounted penalty in the event of an unsuccessful challenge submitted no later than 23 May - my challenge in this case having been submitted and acknowledged by the council on 15 May.

Procedural Impropriety
I will produce evidence that the above points (except that related to the penalty which arose only in formal representations) were raised at both the informal and formal stages and that the authority failed to give them proper, or in some cases any, consideration.

Posted by: obwan1212 Thu, 4 Oct 2018 - 11:52
Post #1422144

Hi all,

I have to submit this by tomorrow, so some urgency if you have any time to comment.

I think I have the Penalty Exceeded Grounds of appeal as below (though happy to have comments!), but need help on the Procedural Impropriety grounds, please:

I submitted a correctly formatted and compiled online challenge on15th May within the 14-day period and received the email below confirming my challenge had been received on the 15th. I did not then receive a response either accepting or rejecting my challenge.

By virtue of the council’s obligation to hold and reoffer the discount (lines 1 and 2 of para. 2 of the following refer - http://www.wandsworth.gov.uk/info/200461/parking_tickets_and_fines/308/challenging_a_penalty_charge_notice ) the demand for the full penalty in the NTO is unlawful and therefore exceeds the amount applicable i.e. until the expiry of any extended discount offered in a reply to my challenge, the applicable penalty remains at the discounted charge.

From hcandersen

QUOTE
Procedural Impropriety:
I will produce evidence that the above points (except that related to the penalty which arose only in formal representations) were raised at both the informal and formal stages and that the authority failed to give them proper, or in some cases any, consideration.


Are the points they ignored:
From the informal: There are several cars parked on the pavement behind my car.
From the formal: I requested that the authority would provide a legal basis for any rejection of my 2 representations which they did not provide. They have not provided any legal basis for exempting the road from the Footway Ban, nor have they provided any legal basis for the 1.2m arbitrary 'clear space'. Nor finally do the photos actually show less than the 'aforementioned space' as they are not clear.



Posted by: hcandersen Fri, 5 Oct 2018 - 09:00
Post #1422421

cp's references cover the point.

An authority which intends to permit parking on the footway only within marked bays MUST according to the Act:

Pass a resolution to this effect;
Erect and maintain prescribed traffic signs to this effect.

In the circumstances of my case ( and sorry for not going right through the thread, so amend if necessary) there are no applicable signs in the vicinity and the authority have not adduced a resolution which would support their otherwise ultra vires actions of not issuing PCNs to vehicles within the markings.

Posted by: obwan1212 Fri, 5 Oct 2018 - 09:26
Post #1422424

Thank you. Do I also add the other two grounds of appeal as well, and if so, could I have a bit of help with the Procedural Impropriety from you, hcandersen:

QUOTE
I will produce evidence that the above points (except that related to the penalty which arose only in formal representations) were raised at both the informal and formal stages and that the authority failed to give them proper, or in some cases any, consideration.


Are the points they ignored:
From the informal: There are several cars parked on the pavement behind my car.
From the formal: I requested that the authority would provide a legal basis for any rejection of my 2 representations which they did not provide. They have not provided any legal basis for exempting the road from the Footway Ban, nor have they provided any legal basis for the 1.2m arbitrary 'clear space'. Nor finally do the photos actually show less than the 'aforementioned space' as they are not clear.

Posted by: hcandersen Fri, 5 Oct 2018 - 10:27
Post #1422445

Please just consolidate and repost here the following, it will make your understanding clearer and will allow us to direct the adj's attention to specific docs and paras:

The PCN;
Your challenge;
The NTO;
Your reps;
The NOR.

Hope this isn't a burden.

Posted by: obwan1212 Fri, 5 Oct 2018 - 10:42
Post #1422450

Will do - I'll sort this now.

Posted by: obwan1212 Fri, 5 Oct 2018 - 12:11
Post #1422500

Dear hcandersen - I'm having problems uploading attachments in PePiPoo. I just get a grey box in two different browsers, and also I'm at work, work have blocked tinypic and all similar sites, so I'm in a bit of a pickle!

The PCN; - this I can't upload, but I hope the key points: Contravention 62: Parked with one or more wheels on or over a footpath or any part of a road other than a carriageway. All the dates / reg etc. seem to be OK.

My challenge:

==============================================================================

Your challenge of the Penalty Charge Notice has been made with the following information:
Registered Keeper:
Penalty Charge Notice number (PCN): WA7949XXXX
Email Address:
Grounds of Appeal: (DNO) The contravention did not occur
Summary of Reasons for Challenge: Hello there. I've received two PCNs - WA7949XXXX and WA7947XXXX over the weekend just gone on TILDESLEY ROAD, SW15 on Friday 11th and Saturday 12th May. You can see in the third picture that behind my car that the whole of the rest of the street has cars parked on the pavement, and in line with my car behind it. Where I am parked is actually closer to the T junction, so I would have thought that if anything I’m being a safer in parking on the pavement. I’m extremely sorry for this, and definitely wouldn’t happen again, but it does seem to be unfair to me and not the rest of those parking on this road.
I was hoping that you would be able to use your discretion to cancel both of the tickets, for the reasons that I am parking safely and only in line with the rest of those parking in the same width of street, and secondly that the 2nd PCN was for exactly the same offence, and less than 24 hours later (08:29 then 08:12 the following morning). I had not moved the car in the meantime as I was at a wedding in Yorkshire, and this is obvious from the second set of photos that the car has not moved.

All correspondence received about a Penalty Charge Notice (PCN) is dealt with in chronological order.

Depending on the stage of the PCN, your enquiry will be now be placed on hold and passed to the appropriate parking team and an officer will reply to you as soon as possible. We aim to respond usually within 14-21 days of receipt for enquiries received in response to a Penalty Charge Notice (PCN), which has been served to your vehicle windscreen.

Please be advised that if you have not received a reply from the Council within this time we have upto 56 days to reply to a formal challenge.

For details of the parking appeals process please refer to our www.wandsworth.gov.uk/parking website.

You may additionally find further useful information on the Parking and Traffic Appeal Service website at www.parkingandtrafficappeals.gov.uk/

Please do not reply to this acknowledgement. If you have any further questions please call our Parking Helpline on (020) 8871 8871 Mon-Fri 9am to 5pm.

If your enquiry is received within the discounted period that is stated on the PCN, then please be assured that we will re-offer you the opportunity to pay the Notice at the 50% reduced rate in the event that the charge is upheld.

==============================================================================

The NTO: Already two links posted in my very first post - do these still work, my mobile can't even access the tinypic website!

Your reps: :

Your challenge of the Penalty Charge Notice has been made with the following information:
Registered Keeper: XXXXX XXXXX
Penalty Charge Notice number (PCN): WA794XXXXX
Email Address: XXXXX XXXXX
Grounds of Appeal: (DNO) The contravention did not occur
Summary of Reasons for Challenge: Dear Sir / Madam, if you reject these representations then you must provide valid reasons based in law.

Representation 1:
Firstly, I challenge this NTO due to the ground of “Penalty exceeded”:

I submitted a correctly formatted and compiled challenge within the 14-day period on 15th May in response to which I received the following automated email reply. I then did not receive a response either accepting or rejecting my challenge.
By virtue of the council’s obligation to hold and re-offer the discount (lines 1 and 2 of para. 2 of the following refer - http://www.wandsworth.gov.uk/info/200461/p..._charge_notice), the demand for the full penalty in the NTO is unlawful and therefore exceeds the amount applicable i.e. until the expiry of any extended discount offered in a reply to my challenge, the applicable penalty remains at the discounted charge. Hence the demand for the full penalty in the NTO is unlawful and therefore exceeds the amount applicable – penalty exceeded.

[Original] Automated email reply:
Your challenge of the Penalty Charge Notice has been made with the following information:
Registered Keeper:
Penalty Charge Notice number (PCN): WA794 XXXXX
Email Address: XXXXX XXXXX
Grounds of Appeal: (DNO) The contravention did not occur
Summary of Reasons for Challenge: Hello there. I've received two PCNs - WA794 XXXXX and WA794XXXXX over the weekend just gone on TILDESLEY ROAD, SW15 on Friday 11th and Saturday 12th May. You can see in the third picture that behind my car that the whole of the rest of the street has cars parked on the pavement, and in line with my car behind it. Where I am parked is actually closer to the T junction, so I would have thought that if anything I’m being a safer in parking on the pavement. I’m extremely sorry for this, and definitely wouldn’t happen again, but it does seem to be unfair to me and not the rest of those parking on this road.
I was hoping that you would be able to use your discretion to cancel both of the tickets, for the reasons that I am parking safely and only in line with the rest of those parking in the same width of street, and secondly that the 2nd PCN was for exactly the same offence, and less than 24 hours later (08:29 then 08:12 the following morning). I had not moved the car in the meantime as I was at a wedding in Yorkshire, and this is obvious from the second set of photos that the car has not moved.

All correspondence received about a Penalty Charge Notice (PCN) is dealt with in chronological order.

Depending on the stage of the PCN, your enquiry will be now be placed on hold and passed to the appropriate parking team and an officer will reply to you as soon as possible. We aim to respond usually within 14-21 days of receipt for enquiries received in response to a Penalty Charge Notice (PCN), which has been served to your vehicle windscreen.

Please be advised that if you have not received a reply from the Council within this time we have upto 56 days to reply to a formal challenge.

For details of the parking appeals process please refer to our www.wandsworth.gov.uk/parking website.

You may additionally find further useful information on the Parking and Traffic Appeal Service website at www.parkingandtrafficappeals.gov.uk/

Please do not reply to this acknowledgement. If you have any further questions please call our Parking Helpline on (020) 8871 8871 Mon-Fri 9am to 5pm.

If your enquiry is received within the discounted period that is stated on the PCN, then please be assured that we will re-offer you the opportunity to pay the Notice at the 50% reduced rate in the event that the charge is upheld.

Representation 2:
1. Contravention did not occur
I was parked at the location with two wheels on the footway, exactly colinear with the numerous cars which your photos show were similarly parked in the background with two wheels on the footway. It is clear from your evidence that parking in this way is ‘permitted’ in this part of the road and therefore the contravention did not occur.
I would further point out that your photos do not show at any point between the back of my car and the line of cars behind any of the signs at items 12-17 of the Part 2 sign table in Schedule 7 to the Traffic etc. Signs Regs 2016. Putting aside the possibility that a sign should have been in place but was missing on the day, it therefore follows that only one of the following scenarios is possible:

1. Both my location and the cars behind sit within a larger area where the council have disapplied the GLC 1974 Act prohibition, the limits of which begin/end some way behind/ahead and out of sight of my car, or
2. The council have not disapplied the footway parking prohibition but are acting ultra vires by selectively and without any signs on the ground choosing to permit footway parking in some areas and not others. For these purposes ‘choosing to permit’ is the same as not enforcing, which by virtue of their status as an enforcement authority is their duty.

If you reject these representations then you must provide valid reasons based in law. Many thanks.


All correspondence received about a Penalty Charge Notice (PCN) is dealt with in chronological order.

Depending on the stage of the PCN, your enquiry will be now be placed on hold and passed to the appropriate parking team and an officer will reply to you as soon as possible. We aim to respond usually within 14-21 days of receipt for enquiries received in response to a Penalty Charge Notice (PCN), which has been served to your vehicle windscreen.

Please be advised that if you have not received a reply from the Council within this time we have upto 56 days to reply to a formal challenge.

For details of the parking appeals process please refer to our www.wandsworth.gov.uk/parking website.

You may additionally find further useful information on the Parking and Traffic Appeal Service website at www.parkingandtrafficappeals.gov.uk/

Please do not reply to this acknowledgement. If you have any further questions please call our Parking Helpline on (020) 8871 8871 Mon-Fri 9am to 5pm.

If your enquiry is received within the discounted period that is stated on the PCN, then please be assured that we will re-offer you the opportunity to pay the Notice at the 50% reduced rate in the event that the charge is upheld.
IMPORTANT:Confidentiality: This email and its attachments are intended for the above named only and may be confidential. If they have come to you in error you must take no action based on them, nor must you copy or show them to anyone. Please reply to this email and highlight the error. Please visit the Council's website at: www.wandsworth.gov.uk
IMPORTANT:
This email and any of its attachments are intended solely for the use of the individual or entity to whom they are addressed. If you have received this message in error you must not print, copy, use or disclose the contents to anyone. Please also delete it from your system and inform the sender of the error immediately. Emails sent and received by Richmond and Wandsworth Councils are monitored and may be subsequently disclosed to authorised third parties, in accordance with relevant legislation.

The NOR: There is a still live link to this document on my post on Fri, 7 Sep 2018 - 10:52. I can't repost it here due to the issues uploading files to Pepipoo.


Posted by: obwan1212 Fri, 5 Oct 2018 - 12:23
Post #1422511

In the evidence Wandsworth have uploaded to the Tribunal, they have added two further letters. The original letter they say they sent on 25/05/18 which I didn't receive, as below, and a second letter provided to explain this which I have also posted below.

In the Notice of Rejection they give me an option to pay the discounted charge, but do not explain that a letter had been sent out, just simply offer the reduction:

QUOTE
I note you are contesting the PCN on the grounds that you had written to the Council when the PCN was issued and did not receive a reply or given the opportunity to pay the discounted amount. On this occasion I am willing to accept the discounted payment see below for details.

The options now available to you at this stage are to either pay the penalty charge at the discounted amount of £65.00 within 14 days from the date of this letter or appeal against the charge at £130.00 to the Environment & Traffic Adjudicator before the end of the period of 28 days beginning with the date of service of this notice, or such longer period as an adjudicator may allow.


It is only in the evidence uploaded by Wandsworth to the tribunal that they even mention that there was a missing letter.

Original Missing letter:

Wandsworth Council
PCN Enquiries
P.O. Box 521
Twickenham TW1 9PJ
Contact Details:
Telephone: 020 8871 8871
Fax: 020 8871 6553
Minicom: 020 8871 8403
Website:
www.wandsworth.gov.uk/parking
Our Ref:
Date: 25/05/2018
Dear Mr
Penalty Charge Notice Numbers:
Vehicle Registration:
Date of Contraventions: 11/05/2018 08:29 & 12/05/2018 at 08:12
Location of Contraventions: TILDESLEY ROAD, SW15
I refer to your enquiry received on 15/05/2018 regarding the above Penalty Charge Notices
(PCNs).
The Penalty Charge Notices was issued because your vehicles parked with one or more
wheels on or over a footpath or any part of a road other than a carriageway.
You mentioned that you was parked close to a T junction and thought it would have been better
to park your vehicle on the pavement. You cannot park on pavements or grass verges for any
length of time, unless there is a sign stating that you are allowed to do so'.Parking on the
footway can obstruct and seriously inconvenience pedestrians, people in wheelchairs or with
visual impairments and people with prams or pushchairs, and where the footway was of a
sufficient width is so that the passage of pedestrians is not compromised.
Regarding your comments about two PCNs being issued within 24 hours, a PCN can be issued
everyday that a vehicle remains in contravention. However on this occasion I will apply
discretion and cancel WA79.
Given the above, I am satisfied that WA7 was correctly issued and regrettably, you
have not established sufficient grounds for cancellation of this penalty charge. As your enquiry
was received within the discount period the amount of £65.00, will be accepted if payment is
received within 14 days of the date of this letter.
To make a credit or debit card payment please call our 24 hour automated payment line on
0800 021 7763 or pay online by visiting www.wandsworth.gov.uk/pcnonline.
Alternatively, your cheque or postal order should be made payable to “Wandsworth Borough
Council”, clearly identified with the Notice number written on the reverse side and sent to:
Wandsworth Borough Council (Parking), PO Box 521, Twickenham, TW1 9PJ.
If payment is not received as detailed, I shall assume that you wish to pursue the matter and
shall arrange for a Notice to Owner to be sent to the registered keeper of the vehicle so that
formal representations may be made. Should these be rejected, the registered keeper of the
vehicle will then be afforded the opportunity to appeal to the Parking Adjudicator.
I should point out that, should you decide to take this course of action, on the expiry of the
discount period you will forfeit the right to pay the Penalty Charge at the lower rate and the fullcharge of £130.00 will be due.
If you are not the registered keeper of the vehicle e.g. the vehicle is a company or lease/hire
vehicle, or being used with the owner’s consent, I suggest you advise the keeper that a Notice
to Owner (NTO) will be issued.
The options are therefore to pay the PCN or follow the statutory process to submit a formal
representation as explained above. Any further information or evidence for the Council's
consideration should only be included as part of the formal representation made by the
registered keeper. Any additional communication received prior to the issue of the NTO will be
filed for information purposes only without a response, although it may be considered if formal
representations are received.
This concludes the Council’s dealings in this matter at this stage.
Yours sincerely
Iaesha Fagan


====================================================

Case summary letter included by Wandsworth to the tribunal:

WANDSWORTHBOROUGH COUNCIL
CASE SUMMARY
From : Joann Nickals Date : 25/09/18
To : Caroline Hamilton
Chief Adjudicator
Case Reference Number :
Appellant
Penalty Charge Notice (s): WA7949
The appeal has been made on the grounds that:
· The Penalty Charge Notice exceeds the amount applicable
· There has been a procedural impropriety on the part of the Enforcement Authority
· The contravention did not occur.
The Penalty Charge Notice was issued for being parked with one or more wheels on or
over a footpath or any part of a road other than a carriageway. The restriction is in force at
all times.
The Council encloses the Civil Enforcement Officers (CEO) photographs to show the
vehicle at the location in contravention.
The appellant has not submitted any further grounds of appeal, in his formal
representations he stated that he did not receive a reply to his initial challenge and that he
as parked in a similar way to how other vehicles were parked.
I can confirm that we replied to the appellant’s informal challenge on 25/05/18 upholding
the charge. As the appellant did not receive the reply the discounted amount was reoffered
in the Notice of Rejection.
Footway parking is not allowed anywhere in Greater London (unless an exemption
applies). However, in Wandsworth we exercise a degree of toleration when vehicles are
not parked within a controlled parking zone provided that 1.2 meters space has been left
for pedestrians with double buggies and wheelchairs to pass. This information is published
in our Parking Guide to Wandsworth pages 16 and 17 which can be found on our website
www.wandsworth.gov.uk/downloads/file/11109/parking_guide_to_wandsworth . I have enclosed in
evidence type J a copy of the information on footway parking.
Having examined the issuing officer’s notes they show that 0:98 meters space was left
which is less then 1.2 meters and that the car was not considerately parked as people in
wheelchairs and members of the public with children in buggies would have to leave the
footway and enter the road to get by.


I therefore submit as 1.2 meters had not been left that the contravention occurred and
therefore £130.00 is now due.
Joann Nickals
Appeals Officer

Posted by: hcandersen Fri, 5 Oct 2018 - 12:58
Post #1422528

Procedural Impropriety
These grounds relate to the authority's failure to give consideration to my formal representations which I submit is proven if their NOR fails to deal with all reasonable grounds of my representations. I would also add that the authority are deceiving the adjudicator in that their case summary does not reflect the reasoning in the NOR but takes a completely different approach in respect of a material matter.

I refer the adjudicator to my formal representations dated *****. In particular those paragraphs which address the issue of the authority's 'differential' approach to enforcement. In this regard I refer you to the following:

Para. ***
'..a vehicle may only be left on the footway if the Local Authority has made the road(or part of the road) exempt from the footway ban. Footway parking will be tolerated at this location provided that 1.2 metres has been left..'

Para. **
'..parking is not permitted on a footpath.. unless there is a sign granting permission'

The authority do not contest that there are no signs 'granting permission' at the location.

I submit that in combination the above can only mean that the Council has either not exempted the road at all, in which case allowing parking at all is beyond their powers, or that it has exempted a larger area than the location which merely sits inside this area. When I parked I reasonably assumed the latter preferring not to consider that the council would act contrary to their duty and I made this point in my representations.

My representations asserted the latter which was not addressed. With respect, I do not accept that them merely stating that something is the case makes it so, in this case the existence of a resolution permitting parking in marked 'parts of the road'. Had they given proper consideration then they would have been able to provide the resolution with their NOR or at least adduce it as evidence at this hearing.

They have done neither.

The reason for this lies behind my second grounds of Procedural Impropriety.
I refer the adjudicator to para. *** where the council's stance is now that ' in Wandsworth we exercise a degree of toleration when vehicles are not parked within a controlled parking zone provided that 1.2 meters space has been left
for pedestrians ..'

Clearly this is at odds with their NOR (how can they adduce one reasoning to the owner and a completely different one to the adjudicator?) and makes it clear that there is no resolution in this case - possibly in any case - that every driver entering Wandsworth is supposed to know(because it's on their website) that IF they park on the footway and IF this is within a CPZ and IF this allows at least 1.2 metres then this is legal, all of which is effected without a single traffic sign in sight. And anyone parking other than in this way, no matter how misled they might be by the authority's unique approach to enforcement, should expect a penalty of £130.
I respectfully submit that this approach should not be condoned by the adjudicator.

Posted by: obwan1212 Fri, 5 Oct 2018 - 13:13
Post #1422534

Huge thanks, much appreciated.

Posted by: obwan1212 Fri, 5 Oct 2018 - 14:08
Post #1422554

Thank you hugely for all your help.

Do you think it is also worth mentioning that none of the photos submitted by the authority actually show the measured space left on the pavement, merely a yellow tape purporting to show this, but with the resolution too low to see any figures on that tape measure?

I'm thinking if all else fails, the fact that they can't provide this evidence then their case falls a bit flat too (on top of the three other grounds for appeal).

Posted by: hcandersen Fri, 5 Oct 2018 - 14:14
Post #1422557

No.

You've had your appeal. You had the opportunity to introduce this argument at that time.

IMO, if you come across as just wanting to reopen the appeal then you'll alienate the reviewing adjudicator.

Posted by: obwan1212 Fri, 5 Oct 2018 - 15:16
Post #1422581

Understood. Thank you. Have a good weekend all.

Posted by: cp8759 Sat, 6 Oct 2018 - 18:49
Post #1422893

QUOTE (hcandersen @ Fri, 5 Oct 2018 - 15:14) *
No.

You've had your appeal. You had the opportunity to introduce this argument at that time.

IMO, if you come across as just wanting to reopen the appeal then you'll alienate the reviewing adjudicator.

I don't think the OP has had his first appeal heard yet?

But regardless, the whole issue of yellow tape and measurements is a red herring, the allegation is parking on the pavement, not obstructing the pavement.

Posted by: obwan1212 Mon, 15 Oct 2018 - 14:54
Post #1425405

Success!!

A huge thank you all, especially hcandersent and cp8759 for a considerable amount of time they put into this.

Adjudicator's Reasons
I am satisfied on the evidence before me that this vehicle was parked with two of its wheels on a footpath.

Parking on a footpath is prohibited 24/7 throughout Greater London unless an exemption applies.

On the council's case is applies a de facto footway parking exemption within its borough allowing vehicles to park on the footway outside of a CPZ where a space of 1.2 metres has been left to allow pedestrians with double buggies and wheelchairs to pass.

Upon the appellant raising the point I am not satisfied in the absence of this 'exemption' being signed that the prohibition the council seeks to enforce is clearly and unambiguously communicated to the motorist and I accordingly find that the contravention has not been proved.

====================

I have since tracked down several other very similar Wandsworth cases that would have helped too, which hopefully will be of use to others in the future: 2180226529, 2180256075, 2160498752 and especially 2170011526. (https://londontribunals.org.uk/ > Statutory Registers > Search using these case numbers and Wandsworth Borough).

====================

Posted by: obwan1212 Thu, 25 Oct 2018 - 07:39
Post #1428359

Slightly annoyingly, Wandsworth, the Enforcement Authority, have asked for a review and the Adjudicator has agreed. Does this happen regularly?

As per my last email, since lodging my appeal, I have tracked down several other very similar Wandsworth cases that would have helped too, which hopefully will be of use to others in the future: 2180226529, 2180256075, 2160498752 and especially 2170011526. (https://londontribunals.org.uk/ > Statutory Registers > Search using these case numbers and Wandsworth Borough).

These are all very similar cases, all in Wandsworth, with four separate adjudicators all coming to the same conclusion. Can the EA in asking for a review, be now seen as being vexatious and can I push for costs? I have put in many hours on this to date, as have all of you that have kindly helped.


London Tribunals Letter:  London_Tribunals_letter__redacted.pdf ( 133.87K ) : 74


EA review request information:  EA_Review_request__redacted.pdf ( 64.98K ) : 80

Posted by: cp8759 Thu, 25 Oct 2018 - 08:46
Post #1428380

This is not common, but it does happen. We need to see the council's submissions to the tribunal.

Posted by: obwan1212 Thu, 25 Oct 2018 - 14:22
Post #1428496

Thank you, cp8759.

Wandsworth's submission to the tribunal -  EA_review_request_full_Redacted.pdf ( 7.65K ) : 101

Posted by: obwan1212 Thu, 25 Oct 2018 - 14:43
Post #1428504

Adjudicator decision: Appeal allowed

I am satisfied on the evidence before me that this vehicle was parked with two of its wheels on a footpath.

Parking on a footpath is prohibited 24/7 throughout Greater London unless an exemption applies.

On the council's case is applies a de facto footway parking exemption within its borough allowing vehicles to park on the footway outside of a CPZ where a space of 1.2 metres has been left to allow pedestrians with double buggies and wheelchairs to pass.

Upon the appellant raising the point I am not satisfied in the absence of this 'exemption' being signed that the prohibition the council seeks to enforce is clearly and unambiguously communicated to the motorist and I accordingly find that the contravention has not been proved.


==================================================================

EA review request [The adjudicator has agreed to review the case].
Case reference:
Appellant name:
Task details:
EA review request task created for Case reference
Task notes:

The Council are requesting a review of the adjudicators decision in the interest of justice.

It is noted that Mr Andrew Harman in reaching his decision found that parking on a footpath is prohibited 24/7 throughout Greater London unless an exemption applies. However in summarising Mr Harman found that in the absence of this 'exemption' being signed that the prohibition the council seeks to enforce is clearly and unambiguously communicated to the motorist.

The Councils position is that we operate a declared discretionary policy whereby no enforcement action will be taken if the vehicle is not parked within a Controlled Parking zone and is parked to allow 1.2 metres space for pedestrians to pass. Although Mr Harman found that our discretionary policy is unambiguously , it remains the Councils position that Footway parking is prohibited throughout the whole of London at all times. Furthermore it has long been the policy in the borough of Wandsworth to allow motorists to park on the footway where the carriageway is narrow and where there are no kerbside restrictions in place as long as a minimum 1.2 metres of footway space is left for wheelchair users or pedestrians with a double buggy. The Councils discretionary policy was also referred to and the relevant pages within the guide were provided in the appeals submission.

Further to the above it would appear that Mr Harman was suggesting that we should convey our discretionary footway parking policy. The Council are of the view that we cannot be expected to sign every street in Wandsworth (where the above restrictions do not exist) stating that you are allowed to park more than 1.2 meters from the kerb It is for the reasons set out above that the Council requests a review of Mr Harman's findings.

Stephen Essex

Posted by: hcandersen Thu, 25 Oct 2018 - 14:57
Post #1428509

I am surprised by LT's letter only to the extent that you are invited to submit additional evidence.

From a personal perspective, I hope they lose and then apply for a Judicial Review because for far, far too long authorities have been playing fast and loose with the Act as written and the intervention of the courts is overdue whichever way that decision goes because we need clarity.

But this is not a re-hearing, it is a review OF YOUR CASE in the interests of justice. Yes there are issues of principle, but it's the facts of your case which apply.

Initally, I would reply to LT and thank them for their letter. At this stage you would be grateful if the tribunal would confirm the limits of the review - which you require to inform your decision whether you could usefully submit additional evidence- and whether the authority, if successful, would intend to pursue the penalty. It occurs to me that what you could usefully submit is whether before seeing the authority's evidence to the orginal adjudicator you had ever become aware of their policy and that despite driving for 100 years in Wandsworth and being a local resident/businessman or whatever ( we can refine this, if true) you had ever seen or come across anything in writing e.g. is there a local council newsletter, which refers to the policy.

Absent the policy being communicated effectively, it's not a rational policy to penalise drivers simply because they are unaware of the unique-among-34 enforcement authorities policy which is applied in Wandsworth.


What I thought was standard practice both with internal reviews and Judicial Reviews is that the authority do not pursue the penalty whatever the outcome. But this is not stated here.

Posted by: obwan1212 Thu, 25 Oct 2018 - 15:19
Post #1428525

Done, thank you. I will update you with the reply.

Posted by: hcandersen Thu, 25 Oct 2018 - 15:21
Post #1428529

Always post drafts here first.

In this case, my draft was incomplete and, as I said, there were some matters to be determined and fine-tuned.

But that's history as you've sent something.

Well at least post what you sent.

Posted by: obwan1212 Thu, 25 Oct 2018 - 15:29
Post #1428530

It was an email to queries@londontribunals.org.uk

Dear Sir / Madame,

I hope you are well, and thank you for your letter dated 19th October 2018, Case Reference:

Following an application by the Enforcement Authority, the adjudicator has agreed to review the decision on this case. At this stage, I would be grateful if the tribunal would confirm the limits of the review, which I require to inform my decision as to whether I could usefully submit additional evidence.

Secondly, please would you also confirm whether the authority, if successful, would intend to pursue the penalty?

Many thanks and kind regards,



From the Case reference 2170011526:

There is no dispute that this vehicle was parked with one or more of its wheels on a footpath or otherwise than on the carriageway.

Parking in this manner is prohibited 24/7 throughout Greater London unless an exemption applies but this council operates a discretionary policy whereby it does not take enforcement action if the vehicle is not parked within a CPZ and is so parked so as to allow 1.2 metres space for pedestrians to pass by this information being given on its website.

I note the points raised by the appellant in relation to this issue. It seems to me that in the absence of signage on the point a motorist who has not consulted the council's website may be completely unaware of its footway parking enforcement policy and that, even if they were aware of it, it would be almost impossible for a motorist to calculate with any degree of accuracy how much space was left for pedestrians to pass by unless they were carrying a tape measure with them.

I am not satisfied against this background that the prohibition the council seeks to enforce is adequately communicated to the motorist and find for that reason that the contravention has not been proved.

Posted by: hcandersen Thu, 25 Oct 2018 - 15:48
Post #1428540

Thanks.

I know what the adj said.

But this all occurred at the hearing and you've not been able to bolster it.

Hence my questions:
Do you live in the area, is there a local council magazine, have you had to consult their website before e.g. perhaps another PCN, or applying for a permit etc.

Now for the Latin, lawyers love Latin.

Non sequitur.
an inference that does not follow from the premises;

The council submitted:
Mr Harman was suggesting that we should convey our discretionary footway parking policy. The Council are of the view that we cannot be expected to sign every street in Wandsworth...

Mr Harman did not say they should, perhaps if the council made any effort to communicate the 'policy' at all, that would be a start.

But I don't know (well I probably do, but I moved out of the borough 15 years ago and I'd never seen anything about a policy). I'm just trying to get a local feel. We don't need to use local knowledge, only if we think it supports the adjudicator's decision.

Posted by: obwan1212 Fri, 26 Oct 2018 - 11:02
Post #1428720

Thank you.

2170011526 isn't my case, but one of the other several appeals allowed in Wandsworth that I posted from four different adjudicators. This one I think he particularly summed up well. The others all reach the same conclusion and all allowing the various appeals.

I do live in the area and folk have been parking in this space on this road and the next seemingly without penalty and I have lots of photos showing that too.

The Wandsworth Council magazine is Brightside, latest editions: http://www.wandsworth.gov.uk/downloads/download/1853/brightside_2018_editions. I've never spotted anything in Brightside about kerbside parking or the 1.2m rule.

I did track down 'Parking enforcement protocols in Wandsworth' on Wandsworth's website but it wasn't easy to find, and I mentioned it in the very first post here: http://www.wandsworth.gov.uk/downloads/file/4706/parking_enforcement_protocols_in_wandsworth

On page 5, under “Areas of parking enforcement in which discretion (leeway) is applied” is a bullet point “in the few uncontrolled roads in the borough (i.e. those where a CPZ has not been introduced) vehicles parked partly on the footway in narrow roads are not ticketed providing that they leave sufficient space for a wheelchair of double buggy to pass unhindered.”, but doesn't mention 1.2m and I can't find that figure anywhere else in the document.

If you put "parking in Wandsworth" into their website search you get over 8,000 results!: http://www.wandsworth.gov.uk/site/custom_scripts/search/combined_results.php?ie=UTF-8&q=parking+in+wandsworth&bgresponse=

Mr. Essex mentions "The Council's discretionary policy .. provided in the appeals submission" in the EA review request. This document isn't in the first 10 pages of results from putting "parking in Wandsworth" into their website search box as above. Edit: In the 58 page document "provided in the appeals submission' - posted to me, the words, 'discretionary policy' aren't even mentioned.

How can this not now be vexatious by the council?

Posted by: hcandersen Fri, 26 Oct 2018 - 11:55
Post #1428727

Don't get this 'vexatious' bee under your bonnet, the adjudicator has determined that there should be a review, not Wandsworth, they simply made the application. IMO, implicitly you're criticising the adjudicator's decision to allow a review.

Leave it until you know more.

Posted by: obwan1212 Fri, 26 Oct 2018 - 13:27
Post #1428749

I have to admit, I do like that word! rolleyes.gif

Posted by: obwan1212 Tue, 30 Oct 2018 - 12:57
Post #1429518

The auto reply from London Tribunals seems to suggest that my question will be added to my case for consideration, but it hasn't yet been. Should I add it or try to telephone them directly?

===========

Thank you for contacting London Tribunals.

Please note that we do not accept attachments via this e-mail address and they will not be added to your case.

If you wish to submit evidence in support of an appeal that you made via our website please go to www.londontribunals.gov.uk and upload your evidence through the 'Online Appeals' option.

If you do not have an appeal, or you did not appeal via the website, correspondence can be sent to London Tribunals, PO Box 10598, Nottingham, NG6 6DR.

If your email is in relation to a personal appeal hearing scheduled to take place either today or tomorrow, please contact our call centre during opening hours on 020 7520 7200.

Details of our opening hours are on our website at www.londontribunals.gov.uk. Please have your case reference number to hand when you call.

If your email is in relation to an appeal already registered with us or a Statutory Declaration/Witness Statement that has been referred to us by the Enforcement Authority, it will be added to your case for consideration.

If you wish to register an appeal, please note that the quickest way to do this is through our website www.londontribunals.gov.uk or to complete the Notice of Appeal form. You can only appeal online or by post. Please only submit your appeal once.

The Notice of Appeal form should have accompanied the Notice of Rejection sent to you by the Enforcement Authority. You can send the form to us by post (details are contained on the form). If you did not receive a Notice of appeal form, please contact the Enforcement Authority directly to request a copy.

Further information about London Tribunals and the appeals process is available on our website: www.londontribunals.gov.uk

Yours sincerely

Case Management Team
London Tribunals
PO Box 10598, Nottingham, NG6 6DR
Tel: 020 7520 7200
Fax: 020 7520 7206
www.londontribunals.gov.uk

Posted by: cp8759 Tue, 30 Oct 2018 - 20:21
Post #1429633

If in doubt, phone them and check.

Posted by: obwan1212 Wed, 7 Nov 2018 - 10:55
Post #1431870

Hello! I got a reply today from the Tribunal, and it looks like the penalty will be enforced if the decision is in their favour:

I am writing in regards to your email received 25 October 2018. You can submit further evidence if you wish for the scheduled review application at London Tribunals. The London Borough of Wandsworth, unless stated otherwise, will continue to enforce the Penalty Charge Notice if the Adjudicator decides in their favour.
Yours sincerely, Case Management Team, London Tribunals, PO Box 10598, Nottingham, NG6 6DR

=========

Unfortunately, I can’t now update my appeal on the Tribunal website as I get the message, 'Your appeal has been decided and is no longer available to track on this website. You can view the decision made on the statutory register on the ETA website." The ETA website just has the original decision. I called them and they said to send in any further evidence via email.

This is what I’m planning to submit, any advice would be gratefully accepted and appreciated!

Dear Sir / Madam,

Thank you for your time. Please would you consider my original representations and grounds of appeal along with the extra evidence provided below.

Evidence 1: The following four cases where appeals were allowed in similar circumstances by 4 separate adjudicators: 2180226529, 2180256075, 2160498752 and especially 2170011526.

2180226529 The civil enforcement officer measured the distance from the car to the grass verge. The distance was I metre. The local authority argues that there should be a 1.2 metre gap. The appellant provides evidence that some double buggies have a width of less than 1 metre.
Double Buggy 1: https://www.dunelm.com/product/chicco-echo-twin-stroller-1000126975 H 107cm x W 78cm.
Double Buggy 2:Specifications for Britax B-Agile Double Pushchair: Dimensions: H 104 x W 78 x D 105 cm
https://www.buggybaby.co.uk/britax-b-agile-double-pushchair-p312/s2504?utm_source=google&utm_medium=cpc&utm_term=britax-b-agile-double-pushchair-cosmos-black-colour-cosmos-black-colour-cosmos-black-4000984141320&utm_campaign=product%2Blisting%2Bads&gclid=CjwKCAiAt4rfBRBKEiwAC678KRKs5O14JQiZCA5hMzjeoCZ2ZmnSpWljODcY8hOtliFGIB4moI7rVRoCxEwQAvD_BwE
Double Buggy 3 Open Width 72cm
https://www.uberkids.com/uk/out-n-about-nipper-double-buggy-v4-includes-rain-cover-631397/?sku=ONANIP-02CRV4&istCompanyId=37dca0b5-f08f-460a-9189-9153d7108287&istItemId=-xrwatiarxx&istBid=t&gclid=CjwKCAiAt4rfBRBKEiwAC678Keka5toYFzfNmUnZlG3v728osqNgilH3HbzaH7ObwuB5x4k-SrMuvhoCUQYQAvD_BwE&gclsrc=aw.ds/
Wheelchair Access: http://info.stantonhomes.com/bid/55331/accessible-homes-width-requirements-for-hallways-and-doorways Minimum clear width for a wheelchair is 36 inches (91.44 cms) for a hall and 32 inches (81.28cms) for a door.

2180256075 Where there is an acknowledged policy of non-enforcement, then the Council cannot expect to enforce PCNs unless there has been a clear communication of the grounds upon which enforcement will take place. A motorist using this area will have a belief that footway parking is acceptable due to non-enforcement and the motorist has no way of knowing that enforcement will take place unless they have parked leaving a space in excess of 1.2 meters.

2160498752 Leaving aside this ambiguity, where is the evidence that 1.2 meters was not left? The civil enforcement officer does not record any measurement and the photographs are not conclusive.
I am allowing this appeal on grounds both of the ambiguity in the policy and the failure to provide any measurement evidence.
In my case there was a photo of a tape measure. Unfortunately that tape measure doesn’t show any measurement at all due to the lack of resolution / clarity. How can you be sure that the Civil Enforcement Officer hadn’t made a mistake, hence not conclusive.

2170011526 . It seems to me that in the absence of signage on the point a motorist who has not consulted the council's website may be completely unaware of its footway parking enforcement policy and that, even if they were aware of it, it would be almost impossible for a motorist to calculate with any degree of accuracy how much space was left for pedestrians to pass by unless they were carrying a tape measure with them.

Evidence 2: I live in the area and folk have been parking in this space on this road and the next seemingly without penalty and I have lots of photos showing this too, [attached to this email (reg numbers blacked out)]. And a highway maintenance truck parked exactly where I was parked: https://www.google.com/maps/@51.4524098,-0.2305154,3a,75y,342.47h,79.38t/data=!3m6!1e1!3m4!1s8Zn7zyDpC81lToi4MChctg!2e0!7i16384!8i8192

Evidence 3 Lack of effective communication: I live in this area, and I can’t find any evidence of the 1.2m that they mention. The Wandsworth Council magazine is Brightside, latest editions which don’t mention anything on parking: http://www.wandsworth.gov.uk/downloads/dow...e_2018_editions. I've never spotted anything in Brightside about kerbside parking or the 1.2m rule.
I did track down 'Parking enforcement protocols in Wandsworth' which is live on Wandsworth's website but it wasn't easy to find:http://www.wandsworth.gov.uk/downloads/file/4706/parking_enforcement_protocols_in_wandsworth
On page 5, under “Areas of parking enforcement in which discretion (leeway) is applied” is a bullet point “in the few uncontrolled roads in the borough (i.e. those where a CPZ has not been introduced) vehicles parked partly on the footway in narrow roads are not ticketed providing that they leave sufficient space for a wheelchair of double buggy to pass unhindered.”, but doesn't mention 1.2m and I can't find that figure anywhere else in the document. Please see several widths of buggies and wheelchair space suggestions above.

Evidence 4 Lack of effective communication: If you put "parking in Wandsworth" into the Wandsworth website search you get over 8,000 results! http://www.wandsworth.gov.uk/site/custom_scripts/search/combined_results.php?ie=UTF-8&q=parking+in+wandsworth&bgresponse=
If you put ‘discretionary policy parking’ in the same search box you get 17 results, none on parking.

Evidence 5: In the information provided for the review of the Tribunal’s decision Mr. Essex from Wandsworth mentions an online document where the 1.2m is mentioned: "The Council's discretionary policy ….. provided in the appeals submission" in the EA review request. This document isn't in the first 10 pages of results from putting "parking in Wandsworth" into their website search box as above - so over 100 links to documents, after which I gave up. In the 58 page document provided in the appeals submission - posted to me, the words, 'discretionary policy' aren't even mentioned.

All this supports the fact that it is very difficult to find anything on the Wandsworth website about their ‘discretionary policy’. With the lack of communication / signage etc., and it doesn’t therefore seem to be a rational policy to penalise drivers simply because they are unaware of the unique-among-34 enforcement authorities’ policy which is applied in Wandsworth.


Posted by: cp8759 Wed, 7 Nov 2018 - 14:07
Post #1431931

Rename "Evidence 1, Evidence 2..." etc to "Ground 1, Ground 2..."

Put the following as Ground 1 and move everything else down):
------------------------
Parliament has provided, under section 15(4) of the Greater London Council (General Powers) Act 1974, that a highways authority may lift the footway parking restriction, and it has further provided under subsection 5 that:

A highway authority shall, before the date specified in a resolution passed or notice issued in accordance with the last foregoing subsection, take such steps as are necessary to secure the placing on or near the footway, grass verge, garden, space or land, or the part thereof, to which the resolution or notice relates of such traffic signs in such position as they consider requisite.

Parliament has determined that where the footway parking restriction is disapplied, signage must be used to alert motorists of the extent of the area where footway parking is permitted (It cannot reasonably be argued that the signage in question would serve any other purpose). Therefore if the council had passed a resolution formally disapplying the footway parking ban for a depth of 1.2 metres across on all roads outside a CPZ, the highways authority would have been required by section 15(5) to install signage to that effect. Had such signage been missing or defective, it would be open to the tribunal to find that the council has failed to adequately bring the extent of the area of permitted footway parking to the attention of motorists and a PCN could be overturned on the basis of missing or inadequate signage.

In the present case the enforcement authority is effectively seeking to circumvent the statutory requirements under substation 15(5) by allowing footway parking by means of a discretionary policy not to enforce the footway parking ban which, as a matter of law, is still in effect notwithstanding the lack of enforcement.

As a matter of public law it may well be that the council is entitled to take this approach to enforcement, but this cannot have the effect of depriving motorists of the statutory protection provided for at section 15(5) of the Act. If the tribunal were to allow enforcement to continue in these circumstances, this would have the effect of allowing the authority to circumvent one of the statutroy provisions Parliament has enacted for the benefit of motorists, and this would in practice frustrate the will of Parliament.

Posted by: obwan1212 Wed, 7 Nov 2018 - 16:36
Post #1431990

Great thank you. I will get this updated and send it off.

Posted by: hcandersen Wed, 7 Nov 2018 - 18:49
Post #1432028

Well put but I would amend the whole submission and not just insert and re-order paragraphs.

On *** I was informed by ETA that Wandsworth Council, the highway authority and enforcement authority for the road, had requested and been granted a review 'in the interests of justice'. I was asked to submit further evidence if I wished.

I consulted your website which is silent on how such evidence should be formatted and therefore I apologise if what follows is improper.

At the original hearing, adjudicator Harman dealt with and determined my appeal on the basis of the first of my *** grounds of appeal. I would therefore submit that even if the authority's review of the decision on their single point were to succeed there is ample substance to my other grounds, which Mr. Harman felt it was not necessary even to consider, to still allow my appeal. At least these points should be considered.

The council's argument rests, I would suggest, on the meaning of the following:

From the written decision:

'On the council's case is[it] applies a de facto footway parking exemption withn its borough..'

'I am not satisfied that in the absence of this 'exemption' being signed that the prohibition that the council seeks to enforce is communicated clearly and unambiguously.'

From their application:
Further to the above it would appear that Mr Harman was suggesting that we should convey our discretionary footway parking policy.

I don't think Mr. Harman was suggesting, he was in effect saying that, even if you have exempted roads lawfully-which you haven't- the council are still obliged to convey this through prescribed or authorised signage.

I fully support Mr. Harman's approach and conclusions and ask the reviewing adjudicator to reject the council's contention that their 'policy' (it cannot of course be a legitimate policy if it is not lawful) and decision to not communicate this is substantially compliant with the law.

(sorry this has been late, terrible problems with my ipad).

This might need to be kicked around.

Posted by: cp8759 Wed, 7 Nov 2018 - 20:46
Post #1432051

Hcandersen I'm sorry but I'm not sure your draft would work as well as what the op put in post 54.

Posted by: hcandersen Wed, 7 Nov 2018 - 22:08
Post #1432078

It's a mix.

My suggestion adds that the appeal as a whole does not fall to be determined on the single point, there were others which the adj did not feel it necessary to even consider. IMO, this point must be made.

In general I don't like the approach, it seems to start afresh when all that's needed is clear bolstering of the original decision.

But I'll go with the flow.

Posted by: PASTMYBEST Wed, 7 Nov 2018 - 22:27
Post #1432088

I think Mr Harman got it wrong. "The contravention has not been proved" Yes it has and he said so in his opening sentence.


But he was not wrong to allow the appeal, IMO just the reason for doing so Which must be abuse of process.

Posted by: Longtime Lurker Wed, 7 Nov 2018 - 23:29
Post #1432105

Are we missing a trick here?

The decision in Case 2160498752 hinges on "Leaving aside this ambiguity, where is the evidence that 1.2 meters was not left?"

I think the OP didn't bring this up first time. If not, can they add it this time? Some adjudicators seem to want to find favour of the appellant without addressing a big contentious issue like the one the council want to get a ruling on, and this might give them a chance to do that.

Posted by: hcandersen Thu, 8 Nov 2018 - 11:26
Post #1432171

With respect, no it hasn't.

And this is the key point IMO.

The adj did not rule on a contravention of the GLA Act's specified provision, he ruled on the basis that even if one accepted that there was a lawful resolution to park, whereas the GLC Act does not require the display of signs, any substituted provision under s15(4) does.

The grounds cited of 'parked in a road other than on ...the carriageway' apply equally to any highway authority alternative as to the GLA Act provision itself, therefore the alleged 'contravention' in this case was the authority's 'exception' (back to quote marks again!) which could not stand because it wasn't communicated as required.

Posted by: cp8759 Thu, 8 Nov 2018 - 13:54
Post #1432251

I agree with hcandersen that the contravention has not been proven because where there is an exception to the general prohibition, s15 requires that restriction to be adequately signed. Post 55 clearly explains why this was a decision that was open to the original adjudicator, as such there is no error of law in the original decision, therefore the request for review should be denied.

Posted by: PASTMYBEST Thu, 8 Nov 2018 - 14:04
Post #1432260

QUOTE (cp8759 @ Thu, 8 Nov 2018 - 13:54) *
I agree with hcandersen that the contravention has not been proven because where there is an exception to the general prohibition, s15 requires that restriction to be adequately signed. Post 55 clearly explains why this was a decision that was open to the original adjudicator, as such there is no error of law in the original decision, therefore the request for review should be denied.



I see where HCA and you are coming from and don't disagree in some way. but it is the finding that the contravention has not been proved that opens a door for review The council are effectively arguing that it is not for an adjudicator to rule on their use of discretion. My point is to effectively say we will allow footway parking at the behest of our CEO's is an abuse of process

Posted by: cp8759 Thu, 8 Nov 2018 - 14:15
Post #1432270

QUOTE (PASTMYBEST @ Thu, 8 Nov 2018 - 14:04) *
My point is to effectively say we will allow footway parking at the behest of our CEO's is an abuse of process

I think that's what I said in post 55, albeit in different terms. If circumventing the statutory protections enacted by Parliament isn't an abuse of process, I don't know what is.

Posted by: obwan1212 Thu, 8 Nov 2018 - 14:34
Post #1432277

Thank you all, very much appreciated.

So should I go with post 55 with post 57 as a further ground added at the top?

Posted by: cp8759 Thu, 8 Nov 2018 - 15:16
Post #1432295

Personally I would go with post 55, followed by the contest of your post 54. hcandersen had suggested you ditch all of that in favour of his post 57. You know my view but it's your case so only you can decide.

Posted by: PASTMYBEST Thu, 8 Nov 2018 - 15:33
Post #1432303

QUOTE (cp8759 @ Thu, 8 Nov 2018 - 15:16) *
Personally I would go with post 55, followed by the contest of your post 54. hcandersen had suggested you ditch all of that in favour of his post 57. You know my view but it's your case so only you can decide.



HCA point re the consideration of all other points in the appeal should be made

Posted by: obwan1212 Thu, 8 Nov 2018 - 16:37
Post #1432327

Thank you both. I will post up the final version tomorrow.

Posted by: obwan1212 Fri, 9 Nov 2018 - 09:08
Post #1432496

In a letter dated 19th October, I was informed by ETA that Wandsworth Council, the highway authority and enforcement authority for the road, had requested and been granted a review 'in the interests of justice'. I was asked to submit further evidence if I wished.

I have been unable to add this evidence to my original case on the Tribunal website, as I get the message, 'Your appeal has been decided and is no longer available to track on this website. You can view the decision made on the statutory register on the ETA website." The ETA website just has the original decision. I called the London Tribunals and was advised to send in any further evidence via email, and hence the below evidence. I have also attached several photos to support ground 3 below.

At the original hearing, the adjudicator Mr. Harman dealt with and determined my appeal on the basis of the first grounds for appeal that the alleged convention did not occur. I would therefore submit that even if the authority's review of the decision on their single point were to succeed there is ample substance to my other grounds, which Mr. Harman felt it was not necessary even to consider, to still allow my appeal. At least these points should be considered, please.

The council's argument rests, I would suggest, on the meaning of the following:
From the written decision: 'On the council's case is[it] applies a de facto footway parking exemption within its borough..' 'I am not satisfied that in the absence of this 'exemption' being signed that the prohibition that the council seeks to enforce is communicated clearly and unambiguously.'
From Wandsworth’s application: Further to the above it would appear that Mr Harman was suggesting that we should convey our discretionary footway parking policy.

I don't think Mr. Harman was suggesting, he was in effect saying that, even if they had exempted roads lawfully-which they hadn't- the council are still obliged to convey this through prescribed or authorised signage under section 15(4) of the Greater London Council (General Powers) Act 1974.

The adjudicator did not rule on a contravention of the GLA Act's specified provision, he ruled on the basis that even if one accepted that there was a lawful resolution to park, whereas the GLC Act does not require the display of signs, any substituted provision under s15(4) does.

I fully support Mr. Harman's approach and conclusions and ask the reviewing adjudicator to reject the council's contention that their 'policy' (it cannot of course be a legitimate policy if it is not lawful) and decision to not communicate this, is substantially compliant with the law.

Extra Evidence:
Ground 1

Parliament has provided, under section 15(4) of the Greater London Council (General Powers) Act 1974, that a highways authority may lift the footway parking restriction, and it has further provided under subsection 5 that:
A highway authority shall, before the date specified in a resolution passed or notice issued in accordance with the last foregoing subsection, take such steps as are necessary to secure the placing on or near the footway, grass verge, garden, space or land, or the part thereof, to which the resolution or notice relates of such traffic signs in such position as they consider requisite.
Parliament has determined that where the footway parking restriction is disapplied, signage must be used to alert motorists of the extent of the area where footway parking is permitted (It cannot reasonably be argued that the signage in question would serve any other purpose). Therefore if the council had passed a resolution formally disapplying the footway parking ban for a depth of 1.2 metres across on all roads outside a CPZ, the highways authority would have been required by section 15(5) to install signage to that effect. Had such signage been missing or defective, it would be open to the tribunal to find that the council has failed to adequately bring the extent of the area of permitted footway parking to the attention of motorists and a PCN could be overturned on the basis of missing or inadequate signage.

In the present case the enforcement authority is effectively seeking to circumvent the statutory requirements under substation 15(5) by allowing footway parking by means of a discretionary policy not to enforce the footway parking ban which, as a matter of law, is still in effect notwithstanding the lack of enforcement.

As a matter of public law it may well be that the council is entitled to take this approach to enforcement, but this cannot have the effect of depriving motorists of the statutory protection provided for at section 15(5) of the Act. If the tribunal were to allow enforcement to continue in these circumstances, this would have the effect of allowing the authority to circumvent one of the statutory provisions Parliament has enacted for the benefit of motorists, and this would in practice frustrate the will of Parliament.

Ground 2: I have also found the following four cases where appeals were allowed in similar circumstances by 4 separate adjudicators: 2180226529, 2180256075, 2160498752 and especially 2170011526.

2180226529 The civil enforcement officer measured the distance from the car to the grass verge. The distance was I metre. The local authority argues that there should be a 1.2 metre gap. The appellant provides evidence that some double buggies have a width of less than 1 metre.
I haven’t found a double buggy nor a wheelchair close to 1.2m width:
Double Buggy 1: https://www.dunelm.com/product/chicco-echo-twin-stroller-1000126975 H 107cm x W 78cm.
Double Buggy 2:Specifications for Britax B-Agile Double Pushchair: Dimensions: H 104 x W 78 x D 105 cm
https://www.buggybaby.co.uk/britax-b-agile-double-pushchair-p312/s2504?utm_source=google&utm_medium=cpc&utm_term=britax-b-agile-double-pushchair-cosmos-black-colour-cosmos-black-colour-cosmos-black-4000984141320&utm_campaign=product%2Blisting%2Bads&gclid=CjwKCAiAt4rfBRBKEiwAC678KRKs5O14JQiZCA5hMzjeoCZ2ZmnSpWljODcY8hOtliFGIB4moI7rVRoCxEwQAvD_BwE
Double Buggy 3 Open Width 72cm
https://www.uberkids.com/uk/out-n-about-nipper-double-buggy-v4-includes-rain-cover-631397/?sku=ONANIP-02CRV4&istCompanyId=37dca0b5-f08f-460a-9189-9153d7108287&istItemId=-xrwatiarxx&istBid=t&gclid=CjwKCAiAt4rfBRBKEiwAC678Keka5toYFzfNmUnZlG3v728osqNgilH3HbzaH7ObwuB5x4k-SrMuvhoCUQYQAvD_BwE&gclsrc=aw.ds/
Recommended Wheelchair Access widths: http://info.stantonhomes.com/bid/55331/accessible-homes-width-requirements-for-hallways-and-doorways Minimum clear width for a wheelchair is 36 inches (91.44 cms) for a hall and 32 inches (81.28cms) for a door.

2180256075 Where there is an acknowledged policy of non-enforcement, then the Council cannot expect to enforce PCNs unless there has been a clear communication of the grounds upon which enforcement will take place. A motorist using this area will have a belief that footway parking is acceptable due to non-enforcement and the motorist has no way of knowing that enforcement will take place unless they have parked leaving a space in excess of 1.2 meters.

2160498752 Leaving aside this ambiguity, where is the evidence that 1.2 meters was not left? The civil enforcement officer does not record any measurement and the photographs are not conclusive. I am allowing this appeal on grounds both of the ambiguity in the policy and the failure to provide any measurement evidence.
In my case there was a photo of a tape measure. Unfortunately that tape measure doesn’t show any measurement at all due to the lack of resolution / clarity. How can you be sure that the Civil Enforcement Officer hadn’t made a mistake, hence not conclusive.

2170011526 . It seems to me that in the absence of signage on the point a motorist who has not consulted the council's website may be completely unaware of its footway parking enforcement policy and that, even if they were aware of it, it would be almost impossible for a motorist to calculate with any degree of accuracy how much space was left for pedestrians to pass by unless they were carrying a tape measure with them.

Ground 3: I live in the area and folk have been parking in this space on this road and the next seemingly without penalty and I have lots of photos showing this too, attached to this email (reg numbers blacked out).

Ground 4: Lack of effective communication: I live in this area, and I can’t find any evidence of the 1.2m that they mention. The Wandsworth Council magazine is Brightside, latest editions which don’t mention anything on parking: http://www.wandsworth.gov.uk/downloads/dow...e_2018_editions. I've never spotted anything in Brightside about kerbside parking or the 1.2m rule.
I did track down 'Parking enforcement protocols in Wandsworth' which is live on Wandsworth's website but it wasn't easy to find: http://www.wandsworth.gov.uk/downloads/file/4706/parking_enforcement_protocols_in_wandsworth
On page 5, under “Areas of parking enforcement in which discretion (leeway) is applied” is a bullet point “in the few uncontrolled roads in the borough (i.e. those where a CPZ has not been introduced) vehicles parked partly on the footway in narrow roads are not ticketed providing that they leave sufficient space for a wheelchair of double buggy to pass unhindered.”, but doesn't mention 1.2m and I can't find that figure anywhere else in the document. This is a live document on their website currently. Please see several widths of buggies and wheelchair space suggestions above.

Ground 5 Lack of effective communication: If you put "parking in Wandsworth" into the Wandsworth website search you get over 8,000 results! http://www.wandsworth.gov.uk/site/custom_scripts/search/combined_results.php?ie=UTF-8&q=parking+in+wandsworth&bgresponse=
If you put ‘discretionary policy parking’ in the same search box you get 17 results, none on parking.
If you put ‘1.2m’ into the search box, you get 4 responses, none about parking.
http://www.wandsworth.gov.uk/parking - if it’s on here, I can’t find it.

Ground 6: In the information provided for the review of the Tribunal’s decision Mr. Essex from Wandsworth mentions an online document where the 1.2m is mentioned: "The Council's discretionary policy ….. provided in the appeals submission" in the EA review request. This document isn't in the first 10 pages of results from putting "parking in Wandsworth" into their website search box as above. 10 pages of results is over 100 links to documents, so it is almost impossible to find on their website. In the 58 page document provided in the appeals submission - posted to me, the words, 'discretionary policy' aren't even mentioned. There is no search I’ve put in that returns a document with the 1.2m mentioned within it.
All this supports the fact that it is very difficult to find anything on the Wandsworth website about their ‘discretionary policy’. With the lack of communication / signage etc., and it doesn’t therefore seem to be a rational policy to penalise drivers simply because they are unaware of the unique-among-34 enforcement authorities’ policy applied solely in Wandsworth.

Posted by: cp8759 Fri, 9 Nov 2018 - 11:06
Post #1432524

Replace Extra Evidence with Additional Grounds, change section 15(4) of the Act to be in italics or in quotation marks (otherwise it's not clear what text is quoted from the legislation, and what text is yours).

Posted by: obwan1212 Fri, 9 Nov 2018 - 13:08
Post #1432568

Thank you. Will do and then send it off. Thanks all for your help.

Posted by: Mad Mick V Sun, 18 Nov 2018 - 22:36
Post #1435166

This yours obwan1212?


218035704A

I am satisfied on the evidence before me that this vehicle was parked with two of its wheels on a footpath.

Parking on a footpath is prohibited 24/7 throughout Greater London unless an exemption applies.

On the council's case is applies a de facto footway parking exemption within its borough allowing vehicles to park on the footway outside of a CPZ where a space of 1.2 metres has been left to allow pedestrians with double buggies and wheelchairs to pass.

Upon the appellant raising the point I am not satisfied in the absence of this 'exemption' being signed that the prohibition the council seeks to enforce is clearly and unambiguously communicated to the motorist and I accordingly find that the contravention has not been proved.

REVIEW REQUEST BY COUNCIL

This case comes before me by way of an application by the Council for a review of a decision of my learned colleague Mr Harman allowing the Appeal in the following terms: -

I am satisfied on the evidence before me that this vehicle was parked with two of its wheels on a footpath.

Parking on a footpath is prohibited 24/7 throughout Greater London unless an exemption applies.

On the council's case is applies a de facto footway parking exemption within its borough allowing vehicles to park on the footway outside of a CPZ where a space of 1.2 metres has been left to allow pedestrians with double buggies and wheelchairs to pass.

Upon the appellant raising the point I am not satisfied in the absence of this 'exemption' being signed that the prohibition the council seeks to enforce is clearly and unambiguously communicated to the motorist and I accordingly find that the contravention has not been proved.

The Grounds of the Council’s application are that it is in the interests of justice that the decision be review for the following reasons:-

It is noted that Mr Andrew Harman in reaching his decision found that parking on a footpath is prohibited 24/7 throughout Greater London unless an exemption applies. However in summarising Mr Harman found that in the absence of this 'exemption' being signed that the prohibition the council seeks to enforce is clearly and unambiguously communicated to the motorist.

The Councils position is that we operate a declared discretionary policy whereby no enforcement action will be taken if the vehicle is not parked within a Controlled Parking zone and is parked to allow 1.2 metres space for pedestrians to pass. Although Mr Harman found that our discretionary policy is unambiguously, it remains the Councils position that Footway parking is prohibited throughout the whole of London at all times. Furthermore it has long been the policy in the borough of Wandsworth to allow motorists to park on the footway where the carriageway is narrow and where there are no kerbside restrictions in place as long as a minimum 1.2 metres of footway space is left for wheelchair users or pedestrians with a double buggy. The Councils discretionary policy was also referred to and the relevant pages within the guide were provided in the appeals submission.

Further to the above it would appear that Mr Harman was suggesting that we should convey our discretionary footway parking policy. The Council are of the view that we cannot be expected to sign every street in Wandsworth (where the above restrictions do not exist) stating that you are allowed to park more than 1.2 meters from the kerb

It is for the reasons set out above that the Council requests a review of Mr Harman's findings.

The Appellant resits the application and sets out his reasons for doing in six grounds most of which centre round the difficulty in ascertaining the Council’s1.2m policy.

It seems tome worth stating clearly the principles involved here. Normally a motorist may park on a road (without causing danger or obstruction) unless there is signage (e.g. yellow lines, parking bays) to say that parking is restricted in some way. However when it comes to parking other than entirely on the carriageway (which for convenience I will refer to as “footway parking”) the position is reversed. There is a blanket prohibition throughout Greater London in parking in this manner unless a) the Council has exercised its powers, by Council resolution, under s15 Greater London Council (General Powers) Act to permit it or b) by creating a designated parking place (i.e. a parking bay) wholly or partly on the footway or c) the vehicle is within one of the very limited exemptions set out in s15. The position is therefore that as soon as a motorist is tempted to park his vehicle off the carriageway alarm bells should ring and he must ask himself on what basis he can be confident that either a) b) or c) apply. If they do not apply, as a starting point, he cannot legally park there.

In the present case the Council has not passed a resolution exempting the road from the prohibition (and there is no signage in place to give a misleading impression that it had). The location is not a designated parking place; and there is nothing to suggest that any of the exemptions in s15 apply. What has led to confusion in the present case is a policy decision made by the Council not to enforce the prohibition if a space of 1.2m is left clear for pedestrians. For the avoidance of doubt I can see no reason why a Council should not adopt such a policy – a Council always has a discretion whether to issue a PCN or to enforce it once issued.

The whole tenor of the Appeal is based on the Appellant’s submission in the form “how is the motorist to be aware of this discretionary exemption”. Certainly it seems not particularly easy to track down – the evidence of the Appellant’s website researches seems persuasive. However the fact that a motorist us unaware of a Council’s policy of limited non-enforcement only operates to deprive him of an opportunity of parking he might otherwise had had he been so ware of it. The motorist in ignorance of that policy - as many motorists from outside the Borough might well be – has simply to assume that the normal prohibition applies and keep off the footway.

If a motorist is aware of the Council’s policy and parks relying on it and in accordance with its terms the Council could not lawfully resile from that policy and issue a PCN. However that is not, or not quite, the position in this case. The Appellant was unaware of the policy until he tracked it down as a result of the present proceedings. He parked because many other vehicles were similarly parked and routinely parked there with impunity as he had himself.

The question that really arises for decision in this case is therefore this - whether the results of the relatively uncommunicated policy of the Council not to enforce, namely large numbers of vehicles routinely parked off the carriageway with no PCNs issued in what one assumes to be a patrolled area, amounts in itself to an indication to a reasonable motorist despite the absence of formal signed exemption, that the Council will not enforce footway parking contraventions in that road. It seems to me that a reasonable motorist might well draw such a conclusion and would be entitled to rely on what is in effect an implied undertaking on the Council’s part. The motorist would be entitled to say to himself “clearly the Council allows footway parking here”, or possibly “clearly the Council allows parking with two wheels on the footway” not “clearly the Council allows footway parking but only if 1.2m is left”.

The Council states it cannot be expected to sign every street to which the policy applies. One has to ask why not, when statute clearly sets out the procedure envisaged for doing so which provides certainty for the motorist. There are many areas in London with extensive exemption signage. If The Council is not prepared to take this course on the obvious grounds of trouble and expense it might usefully employ other more direct ways of communicating its policy to the motorists in the streets affected to prevent motorists from making a reasonable assumption that the Council has no objection to vehicles parked (at least in part) off the carriageway

The Appeal therefore remains allowed (and the review application hence formally refused).
------------------------

Mick

Posted by: obwan1212 Mon, 19 Nov 2018 - 08:56
Post #1435204

It is, thank you, Mad Mick - I was just coming on here to post it!

Thank you all, hugely for your help and time, very much appreciated.

Hopefully an end to it and hoping this will help anyone else in a similar situation.

Posted by: DancingDad Mon, 19 Nov 2018 - 09:09
Post #1435207

That is a cracking result, one for keeping in mind.

Doesn't mention legitimate expectation but that is what it is.
It sorta turns the normal "just cos everyone else parks like that doesn't mean you can" to that you can use habitual parking that indicates no enforcement into a positive.
This is a keeper, well done.

Posted by: hcandersen Mon, 19 Nov 2018 - 10:41
Post #1435238

Excellent result

I wonder what Wandsworth make of this result. Clearly they felt their approach was justified and for me I hope they apply for a Judicial Review so this matter can be nailed by the courts - 44 years is a long wait. Don't worry OP, your involvement is over, any further action would be between Wandsworth and the adjudicator, not you.

And I don't like his option (b), what's the legal basis for this?


Posted by: DancingDad Mon, 19 Nov 2018 - 11:24
Post #1435250

QUOTE (hcandersen @ Mon, 19 Nov 2018 - 10:41) *
.........And I don't like his option (b), what's the legal basis for this?


There isn't but I quite like the logic.
If there is a bay marked out, it is an indication to the motorist that discretionary footway parking is allowed.
Dunno if I would rely on it but I would certainly argue it.

Posted by: cp8759 Mon, 19 Nov 2018 - 11:34
Post #1435256

QUOTE (hcandersen @ Mon, 19 Nov 2018 - 10:41) *
And I don't like his option (b), what's the legal basis for this?

If nothing else it would be perverse and irrational (In the Wednesbury sense)for a council to create a designated parking space, and then issue PCNs to those who park within it.

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